                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 15, 2016                   522563
________________________________

In the Matter of ERIC DOLEMAN,
                    Respondent,
      v

ALBERT PRACK, as Director of                MEMORANDUM AND ORDER
   Special Housing and Inmate
   Disciplinary Programs,
                    Appellant.
________________________________


Calendar Date:   October 25, 2016

Before:   Garry, J.P., Egan Jr., Rose, Devine and Clark, JJ.

                             __________


      Eric T. Schneiderman, Attorney General, Albany (Martin A.
Hotvet of counsel), for appellant.

     Eric Doleman, Malone, respondent pro se.

                             __________


      Appeal from a judgment of the Supreme Court (McNally, J.),
entered May 12, 2015 in Albany County, which granted petitioner's
application, in a proceeding pursuant to CPLR article 78, to
annul a determination of the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner was charged in a misbehavior report with assault
on an inmate and violent conduct following an incident in which a
heated mixture of oil and water was thrown onto the face and
upper body of a sleeping inmate. At the tier III disciplinary
hearing, several correction officers testified and confidential
testimony and documents were admitted into evidence, all of which
established that two inmates had committed the attack at
petitioner's direction. Petitioner was found guilty of the
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charges and the determination was upheld on administrative
appeal. Petitioner then commenced this CPLR article 78
proceeding claiming, among other things, that the Hearing Officer
never advised him of the reason why his requested inmate
witnesses had refused to testify and had not made a sufficient
inquiry as to their reasons for refusing. Following joinder of
issue, Supreme Court granted the petition on the basis that
petitioner's right to call witnesses had been violated, annulled
the determination and ordered that petitioner's institutional
record be expunged. Respondent appeals.

      We affirm. At a disciplinary hearing, an inmate has a
conditional right to call witnesses so long as their testimony is
material and not redundant and does not jeopardize institutional
safety or correctional goals (see Matter of Cortorreal v Annucci,
28 NY3d 54, 58 [2016]; Matter of Peterson v Annucci, 141 AD3d
1051, 1051 [2016]). Here, petitioner requested through his
assistant that four witnesses testify on his behalf – the two
alleged attackers, the victim and a fourth inmate – and the
assistant form indicates that, prior to the hearing, none had
agreed to testify. Contrary to respondent's claims, petitioner
specifically confirmed at the hearing his request to call these
witnesses and explained that he sought their testimony to
establish that he had no problem with the victim. While the
Hearing Officer indicated on the record that he would see if the
inmates would testify on petitioner's behalf, the Hearing Officer
later stated, without explanation, that "each one ha[d] refused
to testify."1

      With respect to the two alleged attackers, the record
reveals that each completed witness refusal forms indicating that


    1
        While petitioner did not reply to the Hearing Officer's
comment, we cannot conclude that petitioner affirmatively waived
the right to call these witnesses given his specific request that
they be called and the Hearing Officer's assurance that he would
see if the inmates would testify on petitioner's behalf. The
Hearing Officer did not disclose what, if any, efforts had been
made to ascertain these inmates' willingness to testify or any
reasons provided for their refusal.
                              -3-                522563

they had "[n]o relevant testimony," although the record does not
reflect that petitioner or his assistant were provided with these
forms. Given that these witnesses had not previously agreed to
testify and the reason for their refusal appears on the record,
petitioner's right to call them as witnesses was not violated
(see Matter of Gano v Venettozzi, 142 AD3d 1240, 1241 [2016];
Matter of Chandler v Annucci, 135 AD3d 1258, 1259 [2016]).

      With regard to the other two requested witnesses, the
record does not reveal that the Hearing Officer made any inquiry
of them or that they completed witness refusal forms. In
addition, no reason for their refusal appears in the record and
there was no testimony from anyone who might have questioned
these witnesses regarding their refusal to testify. Accordingly,
as the record fails to reflect any reason for the witnesses'
refusals to testify or any inquiry into their reasons for
refusing, we uphold Supreme Court's determination that petitioner
was denied his right to call these witnesses (see Matter of
Barnes v LeFevre, 69 NY2d 649, 650 [1986]; Matter of Sorrentino v
Fischer, 106 AD3d 1309, 1310 [2013], appeal dismissed 22 NY3d
1060 [2014]; Matter of Samuels v Fischer, 98 AD3d 776, 777
[2012]; Matter of Moye v Fischer, 93 AD3d 1006, 1007 [2012]).
Since the record does not reflect that the Hearing Officer made
any effort to secure the testimony of these witnesses or to
ascertain if they refused to testify, this situation is
comparable to the outright denial of a witness and resulted in
the denial of petitioner's constitutional right to call
witnesses, making expungement rather than remittal for a new
hearing the appropriate remedy (see Matter of Texeira v Fischer,
26 NY3d 230, 234 [2015]; cf. Matter of Payton v Annucci, 139 AD3d
1223, 1223-1224 [2016]; Matter of Figueoroa v Prack, 131 AD3d
1311, 1311-1312 [2015]; Matter of Johnson v Prack, 122 AD3d 1323,
1324 [2014]).

     Garry, J.P., Egan Jr., Rose, Devine and Clark, JJ., concur.
                        -4-                  522563

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
