Opinion
October 18, 1990
Appeal from the Supreme Court, Albany County.
Petitioner, an inmate in the special housing unit at Coxsackie Correctional Facility in Greene County at the time it was taken over by inmates on August 1, 1988, was served with a misbehavior report signed by a correction sergeant charging him with violating rule 100.10 (assault), rule 100.20 (disturbing the order of the facility) and rule 104.10 (riot). The report accused petitioner of taking an active role in the inmates' negotiations with prison officials and striking and kicking one of the hostages, Correction Officer David Pratt (see, Matter of Fletcher v. Coughlin, 161 A.D.2d 869). Following a Tier III hearing, petitioner was found guilty of all charges. However, that determination was administratively reversed because the tape recording of the proceedings was defective. A rehearing was conducted in November 1988 and petitioner was again found guilty of all charges. After unsuccessful administrative review, petitioner commenced this CPLR article 78 proceeding, subsequently transferred to this court, to challenge that determination.
We find merit in the contention that petitioner's right to call witnesses was violated, requiring annulment of the administrative determination. The record shows that petitioner requested that Pratt be called as a witness and that the Hearing Officer denied this request upon the ground that Pratt was "off duty on compensation for an indefinite period" as a result of the injuries sustained in the subject incident. This will not suffice. Clearly, as the victim of the alleged assault, Pratt's testimony was relevant and material and there is no indication that interviewing Pratt would have jeopardized institutional safety or correctional goals ( 7 NYCRR 254.5 [a]; see, Matter of Mason v. LeFevre, 115 A.D.2d 922, 923; Matter of De Mauro v. LeFevre, 91 A.D.2d 1156, 1157). We note that Pratt testified in connection with related charges against another inmate (see, Matter of Fletcher v. Coughlin, supra, at 871), and the record gives no indication that his testimony could not, at the very least, have been taken over the telephone (see, e.g., Matter of Torres v. Coughlin, 161 A.D.2d 1080). Moreover, petitioner indicated to the Hearing Officer that Pratt had given exculpatory testimony at the prior hearing on these charges, thereby providing notice of the importance of Pratt's testimony to his defense (see, Matter of De Mauro v LeFevre, supra, at 1157).
Because respondent has impermissibly denied to petitioner his regulatory and constitutional right to call witnesses, the appropriate remedy is expungement and not a remittal for further proceedings (see, Matter of Barnes v. LeFevre, 69 N.Y.2d 649; Matter of Taylor v. Coughlin, 158 A.D.2d 881; Matter of Boodro v Coughlin, 142 A.D.2d 820; Matter of Wong v. Coughlin, 137 A.D.2d 272; Matter of De Mauro v. LeFevre, 91 A.D.2d 1156, supra; but see, Matter of Coleman v. Coombe , 65 N.Y.2d 777 ; Matter of Sabo v Racette, 124 A.D.2d 920). In view of our determination that expungement is required, we need not consider the contention that petitioner's subsequent conviction of assault in the second degree arising out of the same incident rendered any error harmless. Moreover, even if we did not order expungement, we would not speculate on the Hearing Officer's resolution of potentially conflicting evidence following a further hearing (see, Matter of Gonzales v. LeFevre, 105 A.D.2d 909, 910), particularly in view of the fact that petitioner's criminal conviction is by no means determinative of the charges of disturbing the order of the facility and riot.
Determination annulled, without costs, petition granted and respondent is directed to expunge all references to this proceeding from petitioner's files. Mahoney, P.J., Casey, Weiss, Yesawich, Jr., and Mercure, JJ., concur.