BOWEN v. COOMBE (1997)

While an inmate at Rochester Correctional Facility (RCF), petitioner was charged with violating inmate rule 108.10 (7 NYCRR 270.2[B][9][i]) by escaping from that facility.   At his Tier III hearing, petitioner asked to call an RCF employee as a witness.   Petitioner had a right to be present during the testimony of that witness unless the Hearing Officer determined that petitioner's presence would jeopardize institutional safety or correctional goals (see, 7 NYCRR 254.5[b];  254.6[b] ).  The Hearing Officer, however, interviewed the witness in petitioner's absence without making any such determination.   Further, nothing in the record suggests that petitioner's exclusion was warranted by either of those considerations (see, Matter of McDermott v. Scully, 145 A.D.2d 421, 422, 535 N.Y.S.2d 628;  cf., Matter of Laureano v. Kuhlmann, 75 N.Y.2d 141, 147, 551 N.Y.S.2d 184, 550 N.E.2d 437;  Matter of Cortez v. Coughlin, 67 N.Y.2d 907, 909, 501 N.Y.S.2d 809, 492 N.E.2d 1225).   Because petitioner was improperly excluded from the hearing during the testimony of his witness, we annul the determination and direct respondent to expunge all references thereto from petitioner's file (see, Matter of Garcia v. LeFevre, 64 N.Y.2d 1001, 1003, 489 N.Y.S.2d 48, 478 N.E.2d 189;  Matter of McDermott v. Scully, supra, at 422, 535 N.Y.S.2d 628;  Matter of Boodro v. Coughlin, 142 A.D.2d 820, 823, 530 N.Y.S.2d 337).

In view of our decision, we do not address petitioner's remaining contentions. (CPLR art. 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.)

Determination unanimously annulled on the law without costs and petition granted.

MEMORANDUM: