                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 5, 2017                    522599
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In the Matter of MANUEL MOSLEY,
                    Petitioner,
      v                                      MEMORANDUM AND JUDGMENT

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


Calendar Date:    November 22, 2016

Before:    Garry, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.

                              __________


      Barclay Damon, LLP, Albany (Caitlin Monjeau of counsel),
for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger of counsel), for respondent.

                              __________


Rose, J.

      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.

      While inmates were returning from recreation, a correction
officer observed petitioner exit the gym, walk toward another
inmate and make a slashing motion toward the inmate's face. The
officer then witnessed petitioner push the inmate into the snow
and drop an unknown object near the walkway. Petitioner and the
other inmate, both of whom had lacerations, were immediately
taken to the infirmary. The inmates remaining in the vicinity
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were diverted to other areas and the location where the unknown
object was dropped was secured. Approximately an hour later, the
secured location was searched with a metal detector and a
cutting-type weapon made from a state-issued razor blade imbedded
in a toothbrush handle was recovered in the snow near the
walkway. As a result of this incident, petitioner was charged in
a misbehavior report with assaulting an inmate, possessing a
weapon, engaging in violent conduct, creating a disturbance and
possessing an altered item. Following a tier III disciplinary
hearing, he was found guilty of the charges, and the
determination was later affirmed on administrative appeal. This
CPLR article 78 proceeding ensued.

      Petitioner initially asserts that substantial evidence was
not adduced establishing that he was in possession of the weapon.
We disagree. The misbehavior report and related documentation
confirm that, from the time petitioner was observed dropping the
weapon to the point at which it was discovered, the area was
secured and no other inmates had access to it. Accordingly, we
find that substantial evidence supports the determination of
guilt (see Matter of Quezada v Fischer, 113 AD3d 1004, 1004
[2014]; Matter of Flores v Fischer, 110 AD3d 1302, 1302-1303
[2013], lv denied 22 NY3d 861 [2014]).

      Nevertheless, respondent concedes, and we agree, that the
Hearing Officer improperly denied petitioner's request to have a
State Police investigator testify and failed to make a proper
inquiry into the reasons that certain inmate witnesses refused to
testify. Although the Hearing Officer denied the investigator's
testimony as irrelevant because he was not present at the time of
the attack and his investigation was separate from the one
conducted by correction officials, petitioner maintained that the
investigator obtained statements during the course of his
investigation that materially contradicted the evidence relied
upon by correction officials. Inasmuch as such testimony would
have been potentially helpful to petitioner's defense, the
Hearing Officer erred in denying it. However, given that the
Hearing Officer articulated a good-faith reason for such denial,
this was at most a regulatory violation entitling petitioner to a
new hearing and not expungement (see Matter of Ellison v Annucci,
142 AD3d 1233, 1234 [2016]; Matter of Williams v Annucci, 137
                              -3-                  522599

AD3d 1355, 1356 [2016], lv denied 27 NY3d 908 [2016]; Matter of
Hand v Gutwein, 113 AD3d 975, 976 [2014], lv denied 22 NY3d 866
[2014]).

       As for the inmate witnesses' refusal to testify, the
Hearing Officer relied upon the notations contained in the
employee assistant form indicating that they were interviewed as
potential witnesses, but did not agree to testify. The Hearing
Officer, however, did not make any inquiry into the reasons for
their refusal or obtain written refusal forms from them.
Although this constituted a denial of petitioner's right to call
witnesses, it too was only a regulatory violation inasmuch as the
employee assistant had ascertained whether the inmate witnesses
would be willing to testify and the Hearing Officer's reliance on
the employee assistant form constitutes a good-faith basis for
denying petitioner's request (see Matter of Dickerson v Fischer,
105 AD3d 1232, 1232 [2013]; Matter of Pitts v Fischer, 98 AD3d
762, 762-763 [2012]). Despite petitioner's contention, our
decision in Matter of Alvarez v Goord (30 AD3d 118 [2006]) is not
to the contrary.

      Given that annulment of the underlying determination is not
warranted on evidentiary grounds, we remit the matter to
respondent for a new hearing based upon the foregoing regulatory
violations. In view of our disposition, we need not address
petitioner's remaining claims.

     Garry, J.P., Egan Jr., Clark and Mulvey, JJ., concur.


      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
