Opinion
May 13, 1993
Appeal from the Supreme Court, Ulster County.
Petitioner was served with two misbehavior reports charging him with violation of prison disciplinary rules, one charging violation of a rule prohibiting possession of contraband and the other charging violation of rules against assault, fighting, possession of a weapon and failing to obey a direct order. These reports were issued as a result of an altercation between inmates during which petitioner allegedly failed to obey an order to stop fighting and was seen using a "shank" to attack another inmate, after which petitioner was found to possess a cardboard sheath strapped to his forearm. Following separate Superintendent's hearings, petitioner was found guilty of all charges.
Petitioner contends that the Hearing Officer was biased and that he was denied adequate employee assistance and his right to submit documentary evidence on his behalf. Initially, we find that petitioner waived his argument that the Hearing Officer was not impartial because of involvement in the matter at issue by failing to raise it at the tier III hearing (see, Matter of Blackshear v Coughlin, 185 A.D.2d 493; Matter of McClean v LeFevre, 142 A.D.2d 911). In any event, the Hearing Officer's tangential involvement in the matter did not disqualify him from acting as Hearing Officer (see, 7 NYCRR 254.1; Matter of Blackshear v Coughlin, supra; Matter of O'Neal v Coughlin, 162 A.D.2d 826).
Petitioner also contends that the Hearing Officer improperly relied upon off-the-record information in finding him guilty of possession of contraband. In making that finding the Hearing Officer stated that petitioner was searched immediately following an incident in which two other inmates were cut or stabbed, although that information does not appear in the record of the hearing on this charge. Documentation supporting this finding was clearly made available to petitioner, however, as he was provided one employee assistant to assist him in preparing his defense of the charges in both misbehavior reports and requested and received copies of reports filed by correction officers involved in the incidents.
We do find, however, that annulment is required because petitioner was denied his right to present relevant documentary evidence in his behalf. Petitioner contends that he was not supplied with certain reports that he requested concerning the incident. While the record reveals that he was supplied with some of these reports, petitioner has produced other reports that he alleges were not provided to him at the time of the hearings. Although respondents state that these reports related to other inmates and petitioner was not entitled to them, a review of the documents in question reveals that they concern the incident in question and refer to petitioner's activities. They were therefore relevant to his defense (see, Matter of Hodges v Scully, 141 A.D.2d 729, 730) and should have been provided absent a finding by the Hearing Officer that disclosure would be unduly hazardous to institutional safety or correctional goals (see, Matter of Hillard v Coughlin, 187 A.D.2d 136; see also, Wolff v McDonnell, 418 U.S. 539, 566). This error requires that the matter be remitted for a new hearing (see, Matter of Taylor v Coughlin, 190 A.D.2d 900). In view of our decision, we do not reach petitioner's other contentions.
Weiss, P.J., Levine, Mercure, Mahoney and Casey, JJ., concur. Adjudged that the determinations are annulled, without costs, and matter remitted to respondents for further proceedings not inconsistent with this Court's decision.