        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1154
TP 14-00469
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF LATIQUE JOHNSON, PETITIONER,

                    V                             MEMORANDUM AND ORDER

ALBERT PRACK, DIRECTOR, SPECIAL HOUSING/INMATE
DISCIPLINARY, RESPONDENT.


LATIQUE JOHNSON, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Cayuga County [Thomas G.
Leone, A.J.], entered March 6, 2014) 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 is unanimously
annulled on the law without costs and the matter is remitted to
respondent for a new hearing.

     Memorandum: In this CPLR article 78 proceeding, petitioner seeks
to annul respondent’s determination, following a tier III disciplinary
hearing, that petitioner violated inmate rules 104.11 (7 NYCRR 270.2
[B] [5] [ii] [violent conduct]); 104.13 (7 NYCRR 270.2 [B] [5] [iv]
[creating a disturbance]); 105.13 (7 NYCRR 270.2 [B] [6] [iv]
[gangs]); and 105.14 (7 NYCRR 270.2 [B] [6] [v] [unauthorized
organizations]). We note at the outset that, contrary to petitioner’s
contention, the determination is supported by substantial evidence
(see generally People ex rel. Vega v Smith, 66 NY2d 130, 139). We
agree with petitioner, however, that he was denied the right to call
witnesses.

     Generally, an inmate has a conditional right to call witnesses at
a prison disciplinary hearing when doing so does not threaten
institutional safety or correctional goals (see Matter of Santiago v
Fischer, 76 AD3d 1127, 1127; Matter of Alvarez v Goord, 30 AD3d 118,
119). Here, as respondent correctly concedes, the Hearing Officer
violated petitioner’s right to call witnesses as provided in the
regulations (see 7 NYCRR 254.5; see generally Matter of Barnes v
LeFevre, 69 NY2d 649, 650). Although petitioner seeks expungement, he
is not entitled to that relief at this juncture. Where, as here, “a
                                 -2-                          1154
                                                         TP 14-00469

good faith reason for the denial appears on the record, this amounts
to a regulatory violation” rather than a violation of petitioner’s
constitutional rights, “requiring that the matter be remitted for a
new hearing” (Matter of Morris-Hill v Fischer, 104 AD3d 978, 978; see
Santiago, 76 AD3d at 1127). We therefore annul the determination and
remit the matter to respondent for a new hearing.




Entered:   November 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
