                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 12, 2016                      521698
________________________________

In the Matter of CALVIN PAYTON,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   March 29, 2016

Before:   Lahtinen, J.P., Egan Jr., Rose, Lynch and Mulvey, JJ.

                             __________


     Calvin Payton, Gowanda, 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 respondent finding petitioner guilty of
violating certain prison disciplinary rules.

      During the course of an investigation, a correction officer
received confidential information implicating petitioner as the
organizer of a group of inmates involved in the assault of an
inmate and the planned assault of two correction officers. The
information received also disclosed that petitioner instructed
these inmates to, among other things, refuse to attend programs
as a way of protesting the withholding of certain privileges. As
a result of his actions, petitioner was charged in a misbehavior
report with assaulting an inmate, conspiring to assault staff,
fighting, engaging in violent conduct, organizing a demonstration
                              -2-                521698

and engaging in an unauthorized assembly. He was found guilty of
the charges following a tier III disciplinary hearing and the
determination was later upheld on administrative appeal. This
CPLR article 78 proceeding ensued.

      Petitioner contends, among other things, that the Hearing
Officer improperly denied him the right to have certain inmate
witnesses testify at the hearing and also failed to comply with
7 NYCRR 254.5 (a). Based upon our review of the record, we must
agree. Prior to the hearing, petitioner gave his assistant a
list of 13 potential inmate witnesses who might testify. At the
hearing, it appears that he wished to have some of these
witnesses testify, but the content of their proposed testimony
was never ascertained by the Hearing Officer. Instead, the
Hearing Officer limited the number of witnesses to three, stating
that he was not going to allow redundant testimony.
Significantly, however, the Hearing Officer never explained the
reason that the testimony would be redundant and this is not
clear from the record. Under these circumstances, we find that
the denial of the remaining inmate witnesses was error (see
Matter of Benito v Calero, 102 AD3d 778, 780 [2013]; Matter of
Gross v Yelich, 101 AD3d 1298, 1298 [2012]). Likewise, we note
that the Hearing Officer failed to provide a written statement
setting forth the reasons for the denial as required by 7 NYCRR
245.5 (a) (see Matter of Texeira v Fischer, 26 NY3d 230, 234
[2015]; Matter of Hill v Selsky, 19 AD3d 64, 66 [2005]).
Accordingly, the determination must be annulled. However, given
that the Hearing Officer set forth a good faith reason for the
denial on the record, he committed a regulatory violation and
remittal for a new hearing, rather than expungement, is the
appropriate remedy (see Matter of Morris-Hill v Fischer, 104
AD3d 978, 978-979 [2013]; Matter of Santiago v Fischer, 76 AD3d
1127, 1127 [2010]). In view of this, we need not address
petitioner's remaining claim.

      Lahtinen, J.P., Egan Jr., Rose, Lynch and Mulvey, JJ.,
concur.
                              -3-                  521698

      ADJUDGED that the determination is annulled, without costs,
and matter remitted to respondent for further proceedings not
inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
