                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 28, 2016                     521616
________________________________

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


Calendar Date:   June 6, 2016

Before:   Lahtinen, J.P., Garry, Rose, Clark and Aarons, JJ.

                             __________


     David Peterson, Stormville, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Frank Brady
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.

      A correction officer heard the sounds of an altercation
coming from a room where petitioner and two other inmates were
conducting an inmate liaison committee meeting. Upon entering
the room, he found petitioner and another inmate (hereinafter the
victim) involved in a verbal disagreement. The officer then
observed bruises and puncture wounds on the victim and discovered
a weapon made out of sharpened plexiglass with a masking tape
handle in a garbage can in the room. Following an investigation,
which included statements from the victim and the other inmate
                              -2-                521616

who was present in the room at the time of the incident that
implicated petitioner, he was charged in a misbehavior report
with violating the prison disciplinary rules prohibiting assault,
fighting and possession of a weapon. Following a tier III
disciplinary hearing, petitioner was found guilty as charged and
this determination was confirmed on administrative appeal. This
CPLR article 78 proceeding ensued.

      Petitioner argues, among other things, that he was denied
the right to call witnesses. "It is well settled that an inmate
has a conditional right to call witnesses at a disciplinary
hearing provided their testimony would not jeopardize
institutional safety or correctional goals" (Matter of Morris-
Hill v Fischer, 104 AD3d 978, 978 [2013] [citations omitted]; see
Matter of Johnson v Prack, 122 AD3d 1323, 1323 [2014]). There is
no violation of this right where a witness who has not previously
agreed to testify refuses and the reason for the refusal appears
in the record (see Matter of Chandler v Annucci, 135 AD3d 1258,
1259 [2016]; Matter of Broadie v Annucci, 131 AD3d 1324, 1324-
1325 [2015]). "Further inquiry is nonetheless required, however,
where the reason given by the witness for refusing to testify is
'clearly specious'" (Matter of Jackson v Prack, 126 AD3d 1243,
1244 [2015], quoting Matter of Beckford v Coughlin, 210 AD2d 775,
776 [1994], lv denied 85 NY2d 807 [1995]).

      During the disciplinary hearing, petitioner requested the
testimony of the other inmate who was present in the room at the
time of the incident. The Hearing Officer contacted that inmate,
who refused to testify and executed a refusal form stating, "I
know nothing." This statement, however, is belied by evidence in
the record. According to the unusual incident report, the
potential inmate witness informed correction officers that
petitioner "stabbed [the victim] with the weapon that was found
in the garbage can." Notably, the Hearing Officer specifically
referenced the witness's account of the incident in his statement
of the evidence that he relied on in making the determination of
guilt. Inasmuch as evidence in the record "casts doubt on the
authenticity of the reason[] given" for the witness's refusal
(Matter of Luna v Coughlin, 210 AD2d 757, 758 [1994]), and there
is nothing in the record indicating that the Hearing Officer made
any further inquiry, we find that petitioner's right to call
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witnesses was violated (see Matter of Jackson v Prack, 126 AD3d
at 1244; Matter of Silva v Scully, 138 AD2d 717, 720 [1988]).
Insofar as the Hearing Officer articulated a good-faith reason
for the denial of the witness, "this amounts to a regulatory
violation requiring that the matter be remitted for a new
hearing" (Matter of Morris-Hill v Fischer, 104 AD3d at 978; see
Matter of Jackson v Prack, 126 AD3d at 1244). Petitioner's
remaining arguments are rendered academic in light of the
foregoing.

     Lahtinen, J.P., Garry, Rose, Clark and Aarons, 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
