                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 30, 2015                    519383
________________________________

In the Matter of LARRY GROSS,
                    Petitioner,
      v

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


Calendar Date:   February 24, 2015

Before:   Peters, P.J., Lahtinen, Garry and Egan Jr., JJ.

                             __________


     Larry Gross, Marcy, 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.

      Petitioner was charged in a misbehavior report with lewd
behavior, stalking and refusing a direct order stemming from an
incident involving a librarian at the correctional facility.
Following a tier III disciplinary hearing, petitioner was found
guilty of lewd behavior and refusing a direct order. Upon
administrative review, the determination was modified to the
extent that the penalty was reduced. This CPLR article 78
proceeding ensued.
                              -2-                  519383

      We agree with petitioner that his conditional right to call
witnesses was violated at the hearing. Although petitioner
requested that his employee assistant interview three inmate
witnesses who worked in the library, the record reflects no
effort by the employee assistant to interview the potential
witnesses or to report the results of those efforts to
petitioner. When this issue was raised at the hearing and
petitioner inquired about those witnesses, the Hearing Officer
adjourned the hearing in order for the employee assistant to
ascertain the witnesses' willingness to testify. Thereafter, the
Hearing Officer denied the requested witnesses based upon the
employee assistant's report that all three witnesses refused to
testify. No inquiry was made by the Hearing Officer as to the
reasons for those witnesses' refusal, no witness refusal forms
were provided, and petitioner's employee assistant was not called
to testify regarding the circumstances as to why the witnesses
refused to testify. Accordingly, the Hearing Officer deprived
petitioner of his right to call witnesses and the matter must be
expunged (see Matter of Samuels v Fischer, 98 AD3d 776, 777
[2012]; Matter of Crosby v Selsky, 24 AD3d 990, 991 [2005]; see
also Matter of Canty v Fischer, 107 AD3d 1194, 1195 [2013]). In
light of the foregoing, petitioner's remaining contentions need
not be addressed.

     Peters, P.J., Lahtinen, Garry and Egan Jr., JJ., concur.


      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
