Opinion
2015-03-26
In the Matter of Myles JACKSON, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Ken McCauley, Albany, for petitioner. Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.
Ken McCauley, Albany, for petitioner. Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE and LYNCH, JJ.
LYNCH, J.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with violating various prison disciplinary rules after he allegedly conspired with other inmates to assault a correction officer. Following a tier III disciplinary hearing, he was found guilty of engaging in a demonstration, violent conduct and making threats. The determination was upheld on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.
Petitioner argues that he was deprived of his conditional right to call witnesses at the disciplinary hearing, and we agree ( see7 NYCRR 254.5[a]; Matter of Laureano v. Kuhlmann, 75 N.Y.2d 141, 146, 551 N.Y.S.2d 184, 550 N.E.2d 437 [1990]; Matter of Hill v. Selsky, 19 A.D.3d 64, 65, 795 N.Y.S.2d 794 [2005] ). Petitioner contended that the misbehavior report was issued in retaliation for a grievance he had filed regarding the officer. Another inmate, Tracy Douglas, was implicated in the conspiracy to attack the officer and telephoned petitioner's wife to report that the officer posed a threat to petitioner. Petitioner, unsurprisingly, requested that Douglas testify. Douglas never agreed to do so and, after he was moved to another prison, he completed a refusal form in which he declined to testify on the ground that he did not “know what[ ][was] going on.”
As a general rule, “no violation of the right to call witnesses will be found when there was no prior assent to testify, but the reason for the refusal appears in the record” ( Matter of Hill v. Selsky, 19 A.D.3d at 66–67, 795 N.Y.S.2d 794; see Matter of Fernandez v. Fischer, 110 A.D.3d 1422, 1423, 973 N.Y.S.2d 886 [2013] ). Further inquiry is nonetheless required, however, where the reason given by the witness for refusing to testify is “clearly specious” ( Matter of Beckford v. Coughlin, 210 A.D.2d 775, 776, 620 N.Y.S.2d 531 [1994], lv. denied85 N.Y.2d 807, 628 N.Y.S.2d 50, 651 N.E.2d 918 [1995]; see Matter of Silva v. Scully, 138 A.D.2d 717, 720, 526 N.Y.S.2d 532 [1988] ). Here, Douglas' claim to have no relevant knowledge is belied by the record evidence, which demonstrates that he was aware of the interactions between petitioner and the officer and, moreover, suggests that he was involved in the conspiracy against the officer. Therefore, because the hearing evidence “cast[ ] doubt on the authenticity of the reasons given” for Douglas' refusal to testify, the Hearing Officer erred in accepting his alleged lack of knowledge at face value and conducting no additional inquiry ( Matter of Luna v. Coughlin, 210 A.D.2d 757, 758, 620 N.Y.S.2d 544 [1994] ). Inasmuch as the determination is otherwise supported by substantial evidence and the Hearing Officer articulated “a good-faith reason for the denial [of Douglas as a witness] ..., this amounts to a regulatory violation requiring that the matter be remitted for a new hearing” ( Matter of Morris–Hill v. Fischer, 104 A.D.3d 978, 978, 960 N.Y.S.2d 273 [2013]; see Matter of Hand v. Gutwein, 113 A.D.3d 975, 976, 978 N.Y.S.2d 913 [2014], lv. denied22 N.Y.3d 866, 2014 WL 1362240 [2014] ).
Petitioner's remaining arguments are rendered academic in light of the foregoing.
ADJUDGED that the determination is annulled, without costs, and matter remitted to the Commissioner of Corrections and Community Supervision for further proceedings not inconsistent with this Court's decision. PETERS, P.J., GARRY and ROSE, JJ., concur.