                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 26, 2017                   522933
________________________________

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


Calendar Date:   November 29, 2016

Before:   McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

                             __________


     Javon Banks, Auburn, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger 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 search of petitioner's cell was authorized and resulted
in the recovery of a green leafy substance wrapped in clear
plastic and a scalpel-type weapon secreted inside a coffee can in
the rear of the cell. The green leafy substance tested positive
for marihuana. As a result, petitioner was charged in a
misbehavior report with possessing drugs, possessing a weapon and
smuggling. Petitioner claimed that the contraband had been
planted and, at the tier III disciplinary hearing, requested that
a number of inmates housed in his cell block who may have
witnessed the search testify. Among them was an inmate who
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originally agreed to testify, but later refused and signed a
refusal form stating that he did not want to get involved.
Petitioner objected to the refusal form and wanted to know why
this inmate had changed his mind. The Hearing Officer indicated
that he would speak to the inmate, but apparently never did.
Thereafter, petitioner was found guilty of possessing drugs and
possessing a weapon, but not guilty of smuggling. The
determination was later affirmed on administrative appeal and
this CPLR article 78 proceeding ensued.

      Petitioner contends, among other things, that his
conditional right to call witnesses was violated by the Hearing
Officer's failure to make a personal inquiry of the inmate who
refused to testify. Under the particular circumstances
presented, we agree. Where, as here, an inmate initially agrees
to testify and later refuses, "[i]t [is] incumbent upon the
Hearing Officer . . . to conduct a personal inquiry unless a
genuine reason for the refusal is apparent from the record and
the Hearing Officer ma[kes] a sufficient inquiry into the facts
surrounding the refusal to ascertain its authenticity" (Matter of
Abdur-Raheem v Prack, 98 AD3d 1152, 1153 [2012]; see Matter of
Hill v Selsky, 19 AD3d 64, 67 [2005]). Significantly, "an
inmate's refusal that is based upon a desire not to be involved
is not adequate to excuse a personal inquiry by the Hearing
Officer" (Matter of Abdur-Raheem v Prack, 98 AD3d at 1153; see
Matter of Hill v Selsky, 19 AD3d at 67). The Hearing Officer
failed to conduct the requisite personal inquiry here,
notwithstanding his offer to do so. Inasmuch as the inmate's
testimony was potentially relevant to charges for which
petitioner was found guilty (cf. Matter of Cornwall v Fischer, 74
AD3d 1507, 1509 [2010]; Matter of Davis v Goord, 46 AD3d 955,
956-957 [2007], lv dismissed 10 NY3d 821 [2008]), we find that
petitioner was denied his regulatory right to call witnesses and
that the matter must be remitted for a new hearing (see Matter of
Abdur-Raheem v Prack, 98 AD3d at 1153; see also Matter of H'Shaka
v Fischer, 100 AD3d 1056, 1057 [2012], lv denied 24 NY3d 913
[2015]). In light of our disposition, we need not address
petitioner's remaining claims.

      McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.,
concur.
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      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
