| Matter of Edwards v Fischer |
| 2011 NY Slip Op 06726 [87 AD3d 1328] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of William Edwards, Petitioner, v Brian Fischer,Commissioner, New York State Department of Correctional Services,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of theSupreme Court in the Fourth Judicial Department by order of the Supreme Court, WyomingCounty [Mark H. Dadd, A.J.], entered March 11, 2011) to review a determination of respondent.The determination found after a tier III hearing that petitioner had violated various inmate rules.
It is hereby ordered that the determination so appealed from is unanimously modified on thelaw and the petition is granted in part by annulling that part of the determination finding thatpetitioner violated inmate rule 113.25 (7 NYCRR 270.2 [B] [14] [xv]) and vacating the penaltyand as modified the determination is confirmed without costs, respondent is directed to expungefrom petitioner's institutional record all references to the violation of that inmate rule and thematter is remitted to respondent for further proceedings in accordance with the followingmemorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul thedetermination, following a tier III hearing, that he violated inmate rules 113.25 (7 NYCRR 270.2[B] [14] [xv] [drug possession]) and 114.10 (7 NYCRR 270.2 [B] [15] [i] [smuggling]).Although petitioner contends that the determination finding that he violated inmate rule 113.25 isnot supported by substantial evidence, his plea of guilty to that violation precludes our review ofthat contention (see Matter of Cross vGoord, 2 AD3d 1425 [2003]).
Petitioner further contends that the Hearing Officer failed to complete the tier III hearing in atimely manner. Although the hearing was completed more than 14 days after "the writing of themisbehavior report" (7 NYCRR 251-5.1 [b]), we nevertheless reject petitioner's contentioninasmuch as the Hearing Officer obtained valid extensions and the hearing was completed withinthe extended time period. "In any event, the time requirement set forth in 7 NYCRR 251-5.1 (b)is merely directory, . . . not mandatory, and there has been no showing by petitionerthat he suffered any prejudice as a result of the delay" (Matter of Crosby v Selsky, 26 AD3d 571, 572 [2006]). There is nosupport in the record for the contention of petitioner that the Hearing Officer's determination wasinfluenced by any alleged bias against petitioner (see Matter of Rodriguez v Herbert, 270AD2d 889, 890 [2000]). " 'The mere fact that the Hearing Officer ruled against the petitioner isinsufficient to establish bias' " (Matter of Wade v Coombe, 241 AD2d 977 [1997]).
We agree with petitioner, however, that he was denied his right to call a material witness[*2]at the hearing. An "inmate may call witnesses on his [or her]behalf provided their testimony is material, is not redundant, and doing so does not jeopardizeinstitutional safety or correctional goals" (7 NYCRR 253.5 [a]; see Matter of Miller v Goord, 2 AD3d928, 929-930 [2003]). Here, the Hearing Officer denied petitioner's request to call anemployee of the Department of Corrections, and petitioner subsequently entered his plea of guiltyto the alleged violations. Because the Hearing Officer failed to state a good faith basis for thedenial of that request, such denial constitutes a constitutional violation, and the proper remedy isexpungement (see Matter of Caldwell vGoord, 34 AD3d 1173, 1174-1175 [2006]; Matter of Alvarez v Goord, 30 AD3d 118, 119-120 [2006]; Matter of Reyes v Goord, 20 AD3d830 [2005]). Contrary to respondent's contention, the testimony of the witness in questionwould not have been redundant, nor would it have been irrelevant or immaterial to the issuewhether the substance found in petitioner's cell constituted a controlled substance (cf. Matter of Bunting v Fischer, 85AD3d 1473 [2011]; Matter ofThorpe v Fischer, 67 AD3d 1101 [2009]). We therefore modify the determination andgrant the petition in part by annulling that part of the determination finding that petitionerviolated inmate rule 113.25, and we direct respondent to expunge from petitioner's institutionalrecord all references to the violation of that inmate rule. The testimony at issue, however, wouldhave been irrelevant to the issue whether petitioner smuggled the substance into his cell. Thus,that part of the determination finding that petitioner violated inmate rule 114.10 is confirmed(see Matter of Sanchez v Irvin, 186 AD2d 996 [1992], lv denied 81 NY2d 702[1993]). By failing to raise the issue at the hearing, petitioner waived his right to challenge theHearing Officer's failure to file a written notice of the reason the witness was not allowed totestify (see Matter of Robinson v Herbert, 269 AD2d 807 [2000]).
"Because a single penalty was imposed and the record fails to specify any relation betweenthe violations and that penalty," we further modify the determination by vacating the penalty, andwe remit the matter to respondent for imposition of an appropriate penalty on the remainingviolation (Matter of Pena v Goord, 6AD3d 1106, 1106 [2004]). Present—Scudder, P.J., Peradotto, Carni, Gorski andMartoche, JJ.