| Matter of Vaughn v Orlando |
| 2010 NY Slip Op 09520 [79 AD3d 1048] |
| December 21, 2010 |
| Appellate Division, Second Department |
| In the Matter of Wesley Vaughn, Petitioner, v Robert M.Orlando, Assistant Warden of the Westchester County Jail, Respondent. |
—[*1] Robert F. Meehan, County Attorney, White Plains, N.Y. (Thomas G. Gardiner of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 to review a determination of Robert M. Orlando, theAssistant Warden of the Westchester County Jail, dated October 16, 2008, which confirmed adetermination of a hearing officer dated October 14, 2008, made after a disciplinary hearing, finding thepetitioner guilty of the charges of disorderly conduct, attempted possession of any contraband, andattempted possession of a controlled substance, and imposing penalties.
Adjudged that the petition is granted, without costs or disbursements, to the extent that thedetermination is annulled and the matter is remitted to the respondent for a new hearing and a newdetermination thereafter in accordance herewith, the petition is otherwise denied, and the proceeding isotherwise dismissed.
On October 8, 2008, the petitioner, an inmate in the custody of the Westchester CountyDepartment of Correction, was served with a disciplinary report charging him with disorderly conduct,attempted possession of any contraband, and attempted possession of a controlled substance. Uponbeing served with the disciplinary report, the petitioner was immediately confined to administrativesegregation pending a disciplinary hearing. Following a disciplinary hearing, the petitioner was foundguilty of the charges. Upon the petitioner's administrative appeal of the hearing officer's determination,Robert M. Orlando, the Assistant Warden of the Westchester County Jail (hereinafter the Warden),confirmed the determination.
The petitioner then commenced the instant proceeding pursuant to CPLR article 78 in the SupremeCourt, Westchester County, to challenge the Warden's determination. In an order dated January 30,2009, the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804 (g).Although the Supreme Court should have disposed of the petitioner's argument that the determinationwas affected by an error of law, specifically, that it was rendered in violation of due processrequirements, before transferring the proceeding to this Court to address the substantial evidencequestion raised by the petition (see CPLR 7804 [g]; Matter of Tolliver v Fischer, 68 AD3d 884, 885 [2009]), since the fullrecord is now before us, we will decide the entire proceeding on the merits in the interest of judicialeconomy (see Matter of Halperin v City ofNew Rochelle, 24 AD3d 768, 772-773 [2005]).
"A prison disciplinary determination made as a result of a hearing at which evidence was takenpursuant to direction by law must be supported by substantial evidence" (Matter of Adamson v Barto, 37 AD3d597, 598 [2007]; see CPLR 7803 [4]; Matter of Ramsey v Phillips, 11 AD3d 470 [2004]). Here, the [*2]evidence presented at the disciplinary hearing, including the disciplinaryreport, provided substantial evidence to support the determination that the petitioner was guilty of thecharged offenses (see Matter of Abdur-Raheem v Mann, 85 NY2d 113, 119 [1995]; Matter of Maxwell v Fischer, 74 AD3d1342 [2010]; Matter of Lawrence v Edwards, 261 AD2d 404 [1999]; Matter ofJames v Strack, 214 AD2d 674, 675 [1995]). Contrary to the petitioner's contention, under thecircumstances of this case, chemical test results were not required in order to find him guilty of thecharges set forth in the disciplinary report (see Matter of Johnson v Goord, 7 AD3d 863, 864 [2004]; Matterof Minton v Goord, 263 AD2d 811 [1999]).
However, "[a] prisoner charged with violating a prison regulation which could result in the loss of'good time' credit is entitled to minimal due process protections" (Matter of Laureano vKuhlmann, 75 NY2d 141, 146 [1990], citing Wolff v McDonnell, 418 US 539 [1974];see Matter of Stallone v Fischer, 67AD3d 125, 128 [2009]). Here, the petitioner was confined to administrative segregation prior tohis disciplinary hearing and, therefore, was unable to prepare his defense (see Matter of Clayman vScully, 144 AD2d 668, 669 [1988]). Accordingly, he had a right to assistance in connection withhis disciplinary proceeding pursuant to the Due Process Clause of the Fourteenth Amendment (seeEng v Coughlin, 858 F2d 889, 897-898 [1988]) and state regulations governing disciplinaryproceedings in county jails and penitentiaries (see 9 NYCRR 7006.6 [a]; see also 7NYCRR 251-4.1 [a] [4]). Under the facts of this case, where the petitioner was not provided withassistance and the record does not reflect that he made a knowing and intelligent waiver of this right, theWarden's determination must be annulled and the matter must be remitted for a new disciplinary hearing(see Matter of Krall v Selsky, 309 AD2d 1027, 1027-1028 [2003]; Matter of Avincola vGoord, 283 AD2d 748 [2001]; Matter of Brown v O'Keefe, 141 AD2d 915, 916[1988]; Matter of Johnakin v Racette, 111 AD2d 579, 580 [1985]; see also Matter ofClayman v Scully, 144 AD2d at 669). Covello, J.P., Florio, Eng and Chambers, JJ., concur.