                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 3, 2016                     520945
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In the Matter of RICHARD
   TEVAULT,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   January 19, 2016

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

                             __________


     Richard Tevault, Dannemora, petitioner pro se.

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

                             __________


      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Albany County) to
review a determination of the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating a
prison disciplinary rule.

      Petitioner was charged in a misbehavior report with using a
controlled substance after a sample of his urine twice tested
positive for the presence of opiates. He maintained his
innocence, asserting that a correction officer had threatened to
manipulate the test results. Petitioner was found guilty of the
charge following a tier III disciplinary hearing and the
determination was later affirmed on administrative appeal. This
CPLR article 78 proceeding ensued.
                              -2-                520945

      Petitioner contends, among other things, that he was
improperly denied the right to have his cellmate, who allegedly
overheard the correction officer threaten him, testify at the
hearing. Petitioner requested the cellmate as a witness at the
hearing. A correction officer approached the cellmate about
testifying, but he apparently refused and would neither sign a
refusal form nor state the reason for his refusal. It does not
appear that the Hearing Officer communicated directly with the
cellmate, but rather related this information to petitioner based
upon the contents of the refusal form. Notably, the correction
officer who completed the refusal form did not testify at the
hearing.

      This Court has acknowledged that "[a] deprivation of the
inmate's right to present witnesses will be found when there has
been no inquiry at all into the reason for the witness's refusal,
without regard to whether the inmate previously agreed to
testify" (Matter of Hill v Selsky, 19 AD3d 64, 66 [2005]; see
Matter of Gross v Prack, 127 AD3d 1532, 1533 [2015]; Matter of
Moye v Fischer, 93 AD3d 1006, 1007 [2012]). No such inquiry was
made by the Hearing Officer here, and respondent has essentially
conceded this much. Thus, while respondent maintains that this
is a regulatory violation for which remittal is appropriate, we
find that the circumstances presented give rise to a
constitutional violation for which expungement is the proper
remedy (see Matter of Gross v Prack, 127 AD3d at 1533; Matter of
Moye v Fischer, 93 AD3d at 1007; Matter of Hill v Selsky, 19 AD3d
at 67-68; compare Matter of Alvarez v Goord, 30 AD3d 118, 121
[2006]).

     Peters, P.J., McCarthy, Devine and Clark, JJ., concur.
                              -3-                  520945

      ADJUDGED that the determination is annulled, without costs,
petition granted and the Commissioner of Corrections and
Community Supervision is directed to expunge all references to
this matter from petitioner's institutional record and restore
any loss of good time.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
