Opinion
March 21, 1996
Appeal from the Supreme Court, Washington County (Hemmett, Jr., J.).
As the result of a prison yard fight petitioner was charged with violating several disciplinary rules. At his disciplinary hearing petitioner called three inmate witnesses to testify; however, one inmate witness refused to testify. The uncooperative inmate witness was brought to the hearing at the direction of the Hearing Officer, where he refused to testify and declined to explain his reasons on the tape recording of the hearing; he also refused to fill out and sign the "refusal to testify" form. Petitioner was found guilty of two of the charges in the misbehavior report. Petitioner commenced this CPLR article 78 proceeding contending that his right to due process was violated by the refusal of the inmate to testify. Supreme Court, finding that the Hearing Officer had failed to make a good-faith effort to ascertain the reasons for the refusal to testify by an inmate witness called by petitioner, granted the petition. Respondents appeal. We reverse.
The Hearing Officer made a diligent and meaningful effort to secure the testimony of the uncooperative inmate witness by bringing him to the hearing. Although petitioner contends that he did not hear the inmate refuse, the record sufficiently establishes, as reported by the Hearing Officer, that the recalcitrant inmate witness refused to testify and refused to elaborate upon his reasons; the refusals occurred in front of the Hearing Officer, two correction officers and petitioner. The Hearing Officer clearly met her obligation to make a meaningful attempt to procure the attendance and testimony of the witness requested by the accused inmate ( see, Matter of Beckford v Coughlin, 210 A.D.2d 775, lv denied 85 N.Y.2d 807). Accordingly, the judgment must be reversed and the petition dismissed.
Mercure, J.P., Crew III, Casey and Yesawich Jr., JJ., concur. Ordered that the judgment is reversed, on the law, without costs, determination confirmed and petition dismissed.