Opinion
1154 TP 14-00469
11-14-2014
In the Matter of Latique JOHNSON, Petitioner, v. Albert PRACK, Director, Special Housing/Inmate Disciplinary, Respondent.
Latique Johnson, Petitioner Pro Se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of Counsel), for Respondent.
Latique Johnson, Petitioner Pro Se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:In this CPLR article 78 proceeding, petitioner seeks to annulrespondent's determination, following a tier III disciplinary hearing, that petitioner violated inmate rules 104.11 (7 NYCRR 270.2 [B][5][ii] [violent conduct] ); 104.13 (7 NYCRR 270.2 [B][5][iv] [creating a disturbance] ); 105.13 (7 NYCRR 270.2 [B][6][iv] [gangs] ); and 105.14 (7 NYCRR 270.2 [B][6][v] [unauthorized organizations] ). We note at the outset that, contrary to petitioner's contention, the determination is supported by substantial evidence (see generally People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997 ). We agree with petitioner, however, that he was denied the right to call witnesses.
Generally, an inmate has a conditional right to call witnesses at a prison disciplinary hearing when doing so does not threaten institutional safety or correctional goals (see Matter of Santiago v. Fischer, 76 A.D.3d 1127, 1127, 908 N.Y.S.2d 139 ; Matter of Alvarez v. Goord, 30 A.D.3d 118, 119, 813 N.Y.S.2d 564 ). Here, as respondent correctly concedes, the Hearing Officer violated petitioner's right to call witnesses as provided in the regulations (see 7 NYCRR 254.5 ; see generally Matter of Barnes v. LeFevre, 69 N.Y.2d 649, 650, 511 N.Y.S.2d 591, 503 N.E.2d 1022 ). Although petitioner seeks expungement, he is not entitled to that relief at this juncture. Where, as here, “a good faith reason for the denial appears on the record, this amounts to a regulatory violation” rather than a violation of petitioner's constitutional rights, “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 ; see Santiago, 76 A.D.3d at 1127, 908 N.Y.S.2d 139 ). We therefore annul the determination and remit the matter to respondent for a new hearing.
It is hereby ORDERED that the determination is unanimously annulled on the law without costs and the matter is remitted to respondent for a new hearing.