                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 9, 2017                   523293
________________________________

In the Matter of MARKEL NANCE,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   January 13, 2017

Before:   Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.

                             __________


      James M. Bogin, Prisoners' Legal Services of New York,
Albany, for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.

                             __________


Aarons, J.

      Appeal from a judgment of the Supreme Court (Zwack, J.),
entered February 29, 2016 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent finding
petitioner guilty of violating certain prison disciplinary rules.

      Petitioner and the other inmates housed in his cell block
were proceeding to the mess hall when a fight broke out between
two inmates. While correction officers were responding to the
incident, petitioner, who had been directed to place his hands on
the bars, moved backwards and shoved one of the officers to the
floor, causing the officer to injure his left ankle. As a
                              -2-                523293

result, petitioner was charged in a misbehavior report with
assaulting staff, engaging in violent conduct and creating a
disturbance. At the ensuing tier III disciplinary hearing,
petitioner complained that his assistant failed to interview the
30 inmates housed in his cell block to ascertain if they had
potentially relevant testimony or to provide him with medical
records of the officer who was injured. The Hearing Officer
responded that it was not necessary for the assistant to
interview all of these inmates and indicated that petitioner was
not entitled to the officer's medical records. In addition, the
Hearing Officer denied as irrelevant petitioner's request to have
one of the inmates who was involved in the initial fight testify
as a witness. At the conclusion of the hearing, petitioner was
found guilty of all of the charges and the determination was
later affirmed on administrative appeal. Petitioner commenced
this CPLR article 78 proceeding challenging the determination
and, following joinder of issue, Supreme Court dismissed the
petition.1 Petitioner now appeals.

      Petitioner contends, among other things, that the Hearing
Officer improperly denied his request to have an inmate who was
involved in the initial fight testify at the hearing. The
Hearing Officer denied this inmate's testimony as irrelevant,
noting that "[a]t the time of [the] incident [,] this inmate was
in the process of being restrained by security staff and was face
down on the floor." However, as respondent concedes, there is no
proof in the record to substantiate the Hearing Officer's
conclusion. The fight occurred in the area where petitioner
allegedly assaulted staff and the requested witness may have made
observations helpful to petitioner's defense. Consequently, the
Hearing Officer's denial of this witness based upon his own
speculation as to the content of the witness's testimony was
error (see Matter of Gross v Yelich, 101 AD3d 1298, 1298 [2012];
Matter of Tafari v Selsky, 76 AD3d 1123, 1124 [2010], lv
dismissed 16 NY3d 783 [2011]).


    1
        Notwithstanding respondent's assertion to the contrary,
it was not necessary for Supreme Court to transfer the proceeding
to this Court as the petition raises only procedural claims and
not the issue of substantial evidence.
                               -3-                523293

      Petitioner also argues that he was denied effective
employee assistance because his assistant failed to interview all
of the inmates housed in his cell block to determine if they had
potentially relevant testimony and failed to provide him with
medical records of the injured officer. In order to prevail upon
such a claim, petitioner must show that he was prejudiced by his
assistant's alleged inadequacies (see Matter of Shoga v Annucci,
132 AD3d 1027, 1028 [2015]; Matter of Irby v Kelly, 161 AD2d 860,
861 [1990]). Here, it appears from the record that the assistant
interviewed only six of the 30 inmates housed in petitioner's
cell block, five of whom refused to testify and one who provided
a vague written statement.2 It is unclear from the record what
attempts, if any, petitioner's assistant made to interview the
other inmates housed in his cell block who were present during
the incident. In view of this, and given that the observations
of such inmates could have potentially supported petitioner's
defense, petitioner was prejudiced by his assistant's failure to
interview them and by the Hearing Officer's failure to remedy
this deficiency (see Matter of Williams v Fischer, 128 AD3d 1147,
1148 [2015]; Matter of Canty v Fischer, 107 AD3d 1194, 1195
[2013]; compare Matter of Alicea v Fischer, 94 AD3d 1316, 1316-
1317 [2012], lv denied 19 NY3d 809 [2012]; Matter of Lashway v
Fischer, 91 AD3d 1239, 1240 [2012], lv denied 19 NY3d 805
[2012]). Furthermore, although the medical records of the
injured officer were relevant, any error in his assistant's
failure to provide them was harmless given that the Hearing
Officer read documentation into the record revealing that the
officer had suffered an injury to his left ankle (see Matter of
Martin v Fischer, 98 AD3d 774, 775 [2012]; Matter of Brown v
Goord, 300 AD2d 777 [2002]).

      Turning to the remedy, we note that, although remittal for
a new hearing is the proper remedy for the regulatory violation
of an inmate's right to call witnesses (see Matter of Peterson v
Annucci, 141 AD3d 1051, 1052 [2016]; Matter of Payton v Annucci,
139 AD3d 1223, 1224 [2016]), expungement of the disciplinary


     2
        Notably, only one inmate testified on petitioner's behalf
at the hearing and it is unclear whether the assistant
interviewed this inmate.
                              -4-                  523293

determination is in order when an inmate has been denied his or
her constitutional right to meaningful employee assistance (see
Matter of Williams v Fischer, 128 AD3d at 1148; Matter of Rivera
v Prack, 122 AD3d 1226, 1228 [2014]). In view of this, and
considering that over a year and a half has elapsed since the
incident giving rise to the misbehavior report during which time
many of the potential witnesses may have been relocated or
released from prison, equity dictates that the disciplinary
determination at issue be annulled and that all references
thereto be expunged from petitioner's institutional record (see
Matter of Williams v Coughlin, 145 AD2d 771, 773 [1988]; Matter
of Allah v LeFevre, 132 AD2d 293, 295 [1987]; Matter of
Cunningham v LeFevre, 130 AD2d 809, 810 [1987]; see also Matter
of Alvarez v Goord, 30 AD3d 118, 120 [2006]).

     Peters, P.J., Lynch, Devine and Clark, JJ., concur.



      ORDERED that the judgment is reversed, on the law, without
costs, petition granted, determination annulled, and respondent
is directed to expunge all references to this matter from
petitioner's institutional record and to restore any loss of good
time.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
