January 21, 1993
Appeal from the Supreme Court, Albany County (Harris, J.).
We agree with Supreme Court that the Hearing Officer violated petitioner's right to call witnesses under 7 NYCRR 254.5 (a) by denying his request to call the correction sergeant who had recommended petitioner for his job as a porter in the special housing unit (hereinafter SHU). The hearing was being held to determine whether petitioner should be placed in administrative segregation. Among the reasons given in support of the recommendation for placement were that petitioner was a security threat to staff and inmates and that he continued to assert that he would try to escape. Because the correction sergeant evaluated and directly observed petitioner's job performance, we agree with Supreme Court that his testimony was relevant on the issue of whether petitioner was a security risk. There is no suggestion that institutional safety or correctional goals would have been at risk had the correction sergeant testified and his testimony would not have been cumulative (see, Matter of Wong v. Coughlin, 137 A.D.2d 272).
Although we agree with Supreme Court that petitioner was impermissibly denied his right to call witnesses (see, Matter of Barnes v. LeFevre, 69 N.Y.2d 649), we do not agree with the court's further determination that the denial was of a constitutional dimension (see, Matter of Allah v. LeFevre, 132 A.D.2d 293). In reaching this conclusion, we note that the hearing was to decide whether petitioner should be administratively segregated; he had not been charged with any violation of prison regulations (see, Hewitt v. Helms, 459 U.S. 460; Matter of Bryant v. Mann, 160 A.D.2d 1086, lv denied 76 N.Y.2d 706; cf., Wolff v. McDonnell, 418 U.S. 539; Matter of Laureano v. Kuhlmann, 75 N.Y.2d 141). Thus, the requirements of due process were satisfied by notice to petitioner and an opportunity to present his views (see, Hewitt v. Helms, supra). Because the denial was a breach of a regulatory requirement only, we also reject the court's determination that expungement was necessary (cf., Matter of Allah v. LeFevre, supra). The procedural error is correctable and the appropriate remedy is to remit the matter for a new hearing (see, Matter of Johnson v Coughlin, 182 A.D.2d 1051; Matter of Payne v. Coughlin, 160 A.D.2d 1108).
We find no error in Supreme Court's rejection of petitioner's remaining procedural arguments. Furthermore, in view of our determination that a new hearing is necessary, the arguments raised by petitioner in his cross appeal need not be addressed.
Weiss, P.J., Levine, Mahoney, Casey and Harvey, JJ., concur. Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as ordered expungement; matter remitted to respondents for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.