| Matter of Benito v Calero |
| 2013 NY Slip Op 00203 [102 AD3d 778] |
| January 16, 2013 |
| Appellate Division, Second Department |
| In the Matter of Daniel Benito, Petitioner, v B.Calero, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavekand Patrick J. Walsh of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review a determination of theCommissioner of the New York State Department of Correctional Services dated August19, 2010, which affirmed a determination of a hearing officer dated June 8, 2010, asmodified June 30, 2010, made after a tier III disciplinary hearing, that the petitioner wasguilty of violating prison disciplinary rules 113.13 and 113.23 (7 NYCRR 270.2 [B] [14][iii], [xiii]).
Adjudged that the petition is granted, without costs or disbursements, thedetermination is annulled, the respondent is directed to expunge all references to thedetermination from the petitioner's institutional record, and the matter is remitted to therespondent for further proceedings in accordance herewith if the respondent be soadvised.
The petitioner, an inmate at the Sing Sing Correctional Facility, was charged withviolating two prison disciplinary rules for having alcohol in his cell (see 7NYCRR 270.2 [B] [14] [iii], [xiii]). The petitioner had not been present during thesearch of his cell, and he requested that two inmates who allegedly had been present becalled as witnesses regarding the search. The hearing officer denied the petitioner'srequest on the ground that the inmates' testimony would be irrelevant. The hearingofficer, however, had not permitted the petitioner to fully explain his reasons for wantingthe inmates to testify before she denied his request. In addition, when the petitionersought to question a witness about his conclusion that the substance found in thepetitioner's cell was alcohol, the hearing officer again refused his request. At theconclusion of the hearing, the hearing officer found the petitioner guilty of both chargesand imposed a penalty. After the penalty was modified on discretionary review, theCommissioner's designee affirmed the determination as it had been modified.
"A prison disciplinary determination made as a result of a hearing at which evidencewas taken pursuant to direction by law must be supported by substantial evidence" (Matter of Adamson v Barto, 37AD3d 597, 598 [2007]; see CPLR 7803 [4]; Matter of Farooq v Fischer, 99AD3d 709, 711 [2012]; Matter of Vaughn v Orlando, 79 AD3d 1048, 1049[2010]). Substantial evidence "means such relevant proof as a reasonable mind mayaccept as adequate to support a conclusion or ultimate fact" (300 Gramatan Ave.Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). "[S]ubstantialevidence is less than a preponderance of the evidence and, as a burden of proof, itdemands only that a given inference is reasonable and plausible, not necessarily the mostprobable" (Matter of Miller v DeBuono, 90 NY2d 783, 793 [1997] [citation andinternal quotation marks omitted]). Here, there was substantial evidence at the hearingsupporting a finding that the petitioner was guilty of violating the charged [*2]prison disciplinary rules. Because the nature of alcohol is amatter of common knowledge, no special expertise or scientific testing is required (see Matter of Sorrentino vFischer, 78 AD3d 1354, 1355 [2010]; Matter of Hernandez v Selsky, 62 AD3d 1177, 1178[2009]; Matter of Collins v Goord, 272 AD2d 703 [2000]). The testimony of theofficers at the hearing was sufficient to establish that the substance was alcohol. Thepetitioner's denial merely presented a credibility issue (see Matter of O'Reilly vGoord, 270 AD2d 858, 858 [2000]).
Nevertheless, the petition must be granted. "A hearing officer's actual outright denialof a witness without a stated good-faith reason, or lack of any effort to obtain a requestedwitness's testimony, constitutes a clear constitutional violation" (Matter of Alvarez v Goord, 30AD3d 118, 121 [2006]; seeMatter of Edwards v Fischer, 87 AD3d 1328, 1330 [2011]; Matter of Reyes v Goord, 20AD3d 830, 831 [2005]). Indeed, the rules of the Department of Corrections andCommunity Supervision expressly provide that inmates have a conditional right to callwitnesses. "The inmate may call witnesses on his behalf provided their testimony ismaterial, is not redundant, and doing so does not jeopardize institutional safety orcorrectional goals. If permission to call a witness is denied, the hearing officer shall givethe inmate a written statement stating the reasons for the denial, including the specificthreat to institutional safety or correctional goals presented" (7 NYCRR 254.5 [a]).Although, under these rules, a hearing officer does not violate an inmate's due processrights by precluding testimony that is redundant or irrelevant (see Matter of Farooq v Fischer,99 AD3d 709 [2012]; Matter of Thomas v Bennett, 271 AD2d 768, 768[2000]), the hearing officer could not have known whether the proposed witnesses'testimony would have been relevant, because she repeatedly refused to allow thepetitioner to explain why he wanted the witnesses to testify. Further, the hearing officerrefused to allow the petitioner to question the witnesses who did testify. Under thesecircumstances, the determination must be annulled and the matter remitted for furtherproceedings if the respondent be so advised (see Matter of Edwards v Fischer, 87AD3d at 1329-1330). In the event a new hearing is held, such hearing must be before adifferent hearing officer. Dillon, J.P., Balkin, Chambers and Hall, JJ., concur.