Opinion
December 22, 1994
Appeal from the Supreme Court, Ulster County.
Petitioner was found guilty after a tier III disciplinary hearing of violating a number of prison disciplinary rules, for which he was penalized accordingly. The evidence of his guilt was overwhelming. His administrative appeal having been rejected, petitioner argues before this Court that his right to due process was violated because the Hearing Officer assertedly failed to make a "meaningful effort" to secure the testimony of several inmate witnesses who apparently refused to testify on petitioner's behalf. We are unpersuaded, however, for the Hearing Officer did not rely solely on hearsay statements that the inmates had declined petitioner's request (compare, Matter of Barnes v LeFevre, 69 N.Y.2d 649, 650); he visited each of the inmates personally and verified that they did indeed refuse to testify. This in-person verification, coupled with the statements recorded by the correction officer who initially attempted to have two of the inmates (C. Dukes and J. Lopez) sign written refusal forms — which they refused to do — as to the reasons given therefor, and the form signed by the third witness (R. Medina) — who indicated that he did not know enough about the specific incident to provide relevant testimony, and that he refused to testify because it was not mandatory — is sufficient to satisfy the Hearing Officer's burden of meaningfully attempting to procure the attendance of witnesses requested by an accused inmate. The record here is such that we are unable to say that the reasons given by the inmate witnesses were clearly specious (compare, Matter of Silva v Scully, 138 A.D.2d 717, 720), that they were mistaken about the nature of the testimony sought (compare, Matter of Williams v Coughlin, 145 A.D.2d 771, 772), or that there was any other sound basis for requiring a more probing inquiry.
Cardona, P.J., Mikoll, Mercure and Casey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.