                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 17, 2015                   520125
________________________________

In the Matter of LEIN
   FIGUEROA,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   August 10, 2015

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

                             __________


     Lein Figueroa, Comstock, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff 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 which found petitioner guilty of violating
certain prison disciplinary rules.

      Following a search of his cell, petitioner was charged in a
misbehavior report with possession of a controlled substance and
unauthorized organization. Following a tier III disciplinary
hearing, he was found guilty of the charges and, on
administrative appeal, that determination was affirmed with a
reduction in the penalty. Petitioner thereafter commenced this
CPLR article 78 proceeding.
                              -2-                520125

      The misbehavior report, testimony of its author and the
testing officer, positive drug test results and other related
documentary evidence provided substantial evidence to support the
determination of guilt (see Matter of Campbell v Prack, 118 AD3d
1202, 1202-1203 [2014]). However, as the Attorney General
concedes, the determination must be annulled because petitioner
was denied his right to call a witness (see 7 NYCRR 254.5 [a];
Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]). After
petitioner requested that his cellmate at the time of the cell
search be called to testify, the Hearing Officer sent two
correction officers to retrieve him; the officers returned and
merely reported that the prospective witness had refused to
testify because "he didn't want to come out." One of the
officers signed a witness refusal to testify form that provided
no reason for the refusal and indicated that the prospective
witness had refused to sign the form. As the Hearing Officer
made no attempt to verify the witness's refusal or ascertain his
reasons for refusing to testify, despite petitioner's repeated
requests, petitioner's right to call witnesses was violated (see
Matter of Barnes v LeFevre, 69 NY2d at 650; Matter of Saez v
Fischer, 113 AD3d 961, 961 [2014]; Matter of Sorrentino v
Fischer, 106 AD3d 1309, 1310 [2013], lv granted 22 NY3d 853
[2013], appeal dismissed 22 NY3d 1060 [2014]; Matter of Dickerson
v Fischer, 105 AD3d 1232, 1232 [2013]). Since the Hearing
Officer made some effort, although inadequate, to obtain the
witness and did not deny the request outright for no reason,
petitioner's regulatory right was violated and not his
constitutional right, and remittal for a new hearing is the
appropriate remedy (see Matter Texeira v Fischer, 115 AD3d 1137,
1138 [2014], lv granted 23 NY3d 908 [2014]).

     Peters, P.J., McCarthy, Rose and Clark, JJ., concur.
                              -3-                  520125

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
