                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 15, 2016                   523206
________________________________

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


Calendar Date:   October 25, 2016

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

                             __________


     Wayne McFarlane, Coxsackie, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco 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.

      After petitioner concluded a visit with his son, he was
strip frisked and a correction officer noticed a foreign
substance in his rectal area. As a result, petitioner was placed
on a contraband watch and the correction officer observing him
saw him suspiciously move his hand around his groin area, place
an unknown item on his food tray and mix it with food. The
officer retrieved the tray and noticed a green leafy substance,
which had a strong odor of marihuana, mixed into the food. The
officer then recovered a ripped plastic bag, two clear plastic
                              -2-                523206

bags containing a green leafy substance and a clear plastic bag
containing a brown chunky substance from the food tray. The
contents of the plastic bags later tested positive for marihuana
and heroin. The correction officer who observed the contraband
watch prepared a misbehavior report charging petitioner with
smuggling and possessing a controlled substance. Following a
tier III disciplinary hearing, he was found guilty of the
charges. The determination was later upheld on administrative
appeal with a modified penalty and this CPLR article 78
proceeding ensued.

      Petitioner contends, among other things, that he was
improperly denied the right to call as a witness an inmate who
allegedly overheard a conversation between petitioner and the
author of the misbehavior report establishing that the author
lied about seeing petitioner place drugs on the food tray.
According to petitioner, during this conversation the correction
officer admitted that he reported that he saw petitioner put the
drugs in the food tray in order to "cover his ass" after being
advised to do so by another correction officer. At the hearing,
petitioner maintained that the verbal exchange between the two
officers revealing that the author was advised to make this
misrepresentation was captured on a videotape of the area outside
the observation room. When the videotape was played at the
hearing, however, the audio was not working. Consequently, the
only evidence that could potentially corroborate petitioner's
defense was the testimony of the other inmate. The Hearing
Officer, however, denied the inmate as a witness on the ground
that he was not present in the contraband watch room and did not
have personal knowledge of the facts. We find that this was
error as, regardless of whether this inmate actually observed the
contraband watch, his testimony was clearly relevant to
petitioner's defense (see Matter of Deboue v Fischer, 108 AD3d
818, 819 [2013]; Matter of Gross v Yelich, 101 AD3d 1298, 1298
[2012]; Matter of Lopez v Fischer, 100 AD3d 1069, 1070 [2012]).
As such, the determination must be annulled. Nevertheless,
inasmuch as the Hearing Officer set forth a good faith reason for
the denial, this was at most a regulatory violation of
petitioner's right to call witnesses for which the appropriate
remedy is a new hearing, particularly given that substantial
evidence otherwise supports the determination (see Matter of
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Allaway v Prack, 139 AD3d 1203, 1205 [2016]; Matter of Hand v
Gutwein, 113 AD3d 975, 976 [2014], lv denied 22 NY3d 866 [2014]).
In view of our disposition, we decline to address petitioner's
remaining claims.

      Peters, P.J., Garry, 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
