                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 17, 2015                   520836
________________________________

In the Matter of OSBOURNE
   BROADIE,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   August 10, 2015

Before:   Peters, P.J., McCarthy, Garry and Clark, JJ.

                             __________


      Matthew McGowan, Prisoners' Legal Services of New York,
Albany, for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondent.

                             __________


      Appeal from a judgment of the Supreme Court (Platkin, J.),
entered July 1, 2014 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.

      A correction officer observed petitioner approach another
inmate in the plumbing shop and repeatedly strike the inmate in
the head with a pipe wrench. As a result, petitioner was charged
in a misbehavior report with refusing a direct order, assaulting
an inmate, engaging in violent conduct and possessing a weapon.
Petitioner requested various witnesses to testify at the tier III
disciplinary hearing, including two inmates who were allegedly
                              -2-                520836

present in the plumbing shop at the time of the incident. Prior
to the commencement of the hearing, petitioner's employee
assistant informed him that both inmates refused to testify.
Although petitioner acknowledged this during the hearing, he
maintained that he wanted his assistant to obtain written
statements from these inmates setting forth their reasons for not
testifying. The Hearing Officer agreed to have staff question
these inmates and, if they still refused to testify, to ascertain
their reasons. Later in the hearing, the Hearing Officer
reported that a correction officer had questioned these witnesses
and obtained refusal forms indicating that they would not testify
because they did not want to get involved. At the conclusion of
the hearing, petitioner was found guilty of assaulting an inmate,
engaging in violent conduct and possessing a weapon. The penalty
was subsequently modified and the determination was upheld on
administrative appeal with the modified penalty. Petitioner
commenced this CPLR article 78 proceeding challenging the
determination on the basis that he was improperly denied the
right to have the two inmate witnesses testify at the hearing.
Following joinder of issue, Supreme Court dismissed the petition.
Petitioner now appeals.

      Petitioner's sole contention is that he was deprived of his
constitutional and regulatory right to call witnesses insofar as
the record is insufficient concerning the reasons for the
inmates' refusals to testify and the Hearing Officer did not
conduct an adequate inquiry with respect thereto. We are not
persuaded. This Court has held that where a requested inmate
witness has not previously agreed to testify and the reason for
the inmate's refusal appears on the record, such as in a witness
refusal form, there is no violation of the conditional right to
call witnesses (see Matter of Cortorreal v Annucci, 123 AD3d
1337, 1338 [2014], lv granted 25 NY3d 961 [2015]; see also Matter
of Hill v Selsky, 19 AD3d 64, 66-67 [2005]). Indeed, in such
circumstances, even where the reason that appears on the record
is the inmate's desire not to be involved, this Court has
declined to find a violation (see Matter of Tafari v Fischer, 78
AD3d 1405, 1406 [2010], lv denied 16 NY3d 704 [2011]; Matter of
Boyd v Selsky, 232 AD2d 929, 929-930 [1996]). Notwithstanding
petitioner's suggestion to the contrary, our decisions are
consistent with the Court of Appeals' holding in Matter of Barnes
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v LeFevre (69 NY2d 649 [1986]). Moreover, although a Hearing
Officer bears a greater responsibility to conduct a further
inquiry into the legitimacy of a refusal where the witness
previously agreed to testify, but later changed his or her mind
(see Matter of Abdur-Raheem v Prack, 98 AD3d 1152, 1153 [2012]),
that is not the situation here. Therefore, Supreme Court
properly concluded that petitioner's right to call witnesses was
not violated.

     Peters, P.J., McCarthy, Garry and Clark, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
