Opinion
December 5, 1985
Appeal from the Supreme Court, Albany County (Hughes, J.).
At issue on this appeal is whether there was a rational basis for the determination to exclude petitioner from his administrative disciplinary hearing during the testimony of inmate witnesses. In view of the long history of assaultive and disruptive behavior on the part of petitioner and the witnesses involved, all residents of the special housing unit, we conclude that their exclusion was proper, as the inmates' misbehavior reports and the disciplinary records of the witnesses demonstrate a rational basis for the determination made, and that the presence of petitioner, together with his respective witnesses, would jeopardize institutional safety and correctional goals (cf. People ex rel. Bradley v Smith, 115 A.D.2d 224). We further find that the record demonstrates that petitioner was informed of the reasons for this determination and that a tape recording of the witnesses' statements was made available to petitioner ( 7 NYCRR 254.5 [a], [b]; see, Matter of Garcia v LeFevre, 64 N.Y.2d 1001).
Judgment reversed, on the law, without costs, and petition dismissed. Mahoney, P.J., Kane, Casey and Weiss, JJ., concur.
Inasmuch as the Court of Appeals in Matter of Garcia v LeFevre ( 64 N.Y.2d 1001, revg 102 A.D.2d 1004) did not reach what I consider to be the dispositive issue in the instant case, namely, whether respondents could justify by evidence submitted for the first time in their answer to the petition the refusal of prison authorities to permit petitioner to be present during testimony of inmate witnesses, the position of the majority in our Garcia decision ( 102 A.D.2d 1004) still controls (see also, Matter of Sapp v LeFevre, 111 A.D.2d 483). Therefore, I am constrained to concur.