Opinion
December 9, 1993
Appeal from the Supreme Court, Albany County (Cardona, J.).
Petitioner challenges a determination following a tier III disciplinary hearing finding him guilty of violating institutional rules during the inmate uprising at Southport Correctional Facility, Chemung County, on May 28-29, 1991. Petitioner did not challenge the substantiality of the evidence upon which the Hearing Officer found him guilty. Rather, he raised four procedural objections: (1) that the Hearing Officer failed to call as a witness Correction Officer K. Burgett, the officer petitioner is alleged to have threatened with a sharpened stick, (2) that petitioner was improperly excluded from the hearing, (3) that the Hearing Officer failed to electronically record proceedings that took place on July 3, 1991, and (4) that the failure of petitioner's assistant to view a videotape of the riot was a denial of petitioner's due process rights. Supreme Court found that respondent denied petitioner's fundamental rights to be present at the hearing and to call a witness, and that expungement, rather than remittal for a rehearing, was the appropriate remedy. Respondent appeals.
Respondent concedes that the administrative hearing was marred by procedural error and contends only that Supreme Court erred in ordering expungement. We disagree. Expungement is required when "there has been a violation of one of the inmate's fundamental due process rights, as enunciated in Wolff v McDonnell [ 418 U.S. 539]" (Matter of Hillard v Coughlin, 187 A.D.2d 136, 140, lv denied 82 N.Y.2d 651; see, Matter of Torres v Coughlin, 166 A.D.2d 793; Matter of Rosario v Seksky, 162 A.D.2d 939, 940-941; Matter of Taylor v Coughlin, 158 A.D.2d 881, 883). Among the fundamental, judicially recognized rights are the right to call witnesses and to be present at the hearing (see, Wolff v McDonnell, supra; Matter of Laureano v Kuhlmann, 75 N.Y.2d 141, 146-147; Matter of Dawes v Coughlin, 193 A.D.2d 1047; Matter of Al Jihad v Mann, 159 A.D.2d 914, 915, lv denied 76 N.Y.2d 706; Matter of Williams v Coughlin, 145 A.D.2d 771, 772; Matter of Mallard v Dalsheim, 97 A.D.2d 545, 546).
The failure to electronically record a hearing involves a regulatory rather than a fundamental right (see, 7 NYCRR 254.6 [b]), and the failure of petitioner's assistant to view a videotape "implicated only the right to confrontation and cross-examination, expressly excluded from the panoply of inmate due process rights" (Matter of Hillard v Coughlin, supra, at 140).
Here, respondent does not deny petitioner's allegation in paragraph 24 of the petition that he did nothing to disrupt the hearing. Instead, respondent states that the hearing transcript is "the best evidence of what occurred at the hearing and speaks for itself". Inasmuch as a portion of the hearing was not recorded and there is nothing in the record indicating how petitioner was disruptive or whether his exclusion was necessary to further institutional safety or correctional goals, we conclude that petitioner's fundamental right to be present at the hearing was violated (see, Matter of Dawes v Coughlin, supra). Similarly, the record provides an insufficient evidentiary basis for the conclusion that Burgett refused to testify for medical reasons (see, Matter of Codrington v Mann, 174 A.D.2d 868, 869; cf., Matter of Porter v Cuomo, 191 A.D.2d 852, 853). In these circumstances, we agree with Supreme Court that the proper remedy was expungement (see, Matter of Dawes v Coughlin, supra; Matter of Taylor v Coughlin, supra).
Weiss, P.J., Crew III and White, JJ., concur. Ordered that the judgment is affirmed, without costs.