IN RE: Shakur WINGATE (2025)

OPINION AND JUDGMENT

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 a prison disciplinary rule.

Upon being directed to perform a cube frisk, a correction officer discovered a ceramic-type object with a sharpened point located in petitioner's secured locker.  As a result, petitioner was charged in a misbehavior report with possession of a weapon.  A tier III disciplinary hearing ensued, during which petitioner was represented by counsel, and petitioner was found guilty of the charge.  On account of that determination, the Hearing Officer concluded that counsel's presence was “no longer necessary” during the dispositional phase, denied counsel's further appearance and imposed a penalty of, among other things, 250 days in the segregated housing unit and a loss of good time credit.  Petitioner's administrative appeal was unsuccessful, prompting him to commence this CPLR article 78 proceeding to challenge the underlying determination.

Initially, the misbehavior report, in conjunction with the hearing testimony of the correction officer who found the weapon and the photographic evidence submitted for in camera review, provide substantial evidence to support the determination of guilt (see Matter of Matthews v. Annucci, 175 A.D.3d 1713, 1713, 108 N.Y.S.3d 217 [3d Dept. 2019];  Matter of Nova v. Kirkpatrick, 160 A.D.3d 1326, 1326, 75 N.Y.S.3d 346 [3d Dept. 2018]), and we reject petitioner's assertion that the sharpened ceramic blade was not a weapon.  The Hearing Officer found, based upon the evidence presented, that the ceramic blade was capable of causing serious physical injury, and “any item ․ may be classified as a weapon or dangerous instrument by description, use or appearance[, and a] dangerous instrument is any instrument ․ [that] is readily capable of causing bodily harm” (7 NYCRR 270.2[b][14][i];  see Matter of Tinnirello v. Selsky, 51 A.D.3d 1238, 1239, 858 N.Y.S.2d 806 [3d Dept. 2008];  Matter of Mallen v. Hearing Officer, Great Meadow Correctional Facility, 304 A.D.2d 879, 879, 759 N.Y.S.2d 772 [3d Dept. 2003]).

Turning to petitioner's procedural arguments, although petitioner was not present for the search of his cell, “cell searches may properly be conducted in an [incarcerated individual's] absence,” and there is no evidence here that petitioner was excluded rather than just in a different location at the time (Matter of Mingo v. Chappius, 106 A.D.3d 1160, 1161, 966 N.Y.S.2d 233 [3d Dept. 2013];  cf.  Matter of Kirby v. Annucci, 147 A.D.3d 1134, 1135, 46 N.Y.S.3d 292 [3d Dept. 2017]).  Petitioner's assertion that he was improperly denied the opportunity to present certain witness testimony is similarly without merit.  The proffered testimony would not have been material to the underlying charge as these witnesses were not present during the search in question and had no first-hand knowledge thereof (see 7 NYCRR 254.5[a];  Matter of Johnson v. Annucci, 205 A.D.3d 1173, 1174, 165 N.Y.S.3d 925 [3d Dept. 2022];  Matter of Medina v. Rodriguez, 155 A.D.3d 1200, 1200, 63 N.Y.S.3d 264 [3d Dept. 2017]).  Likewise, an incarcerated individual, either individually or through representation, “may not ask a particular witness any question that he or she desires;  rather, it is for the Hearing Officer – in his or her quasi-judicial role – to ascertain whether the questions posed will elicit material and relevant testimony and, correspondingly, to curtail testimony that is immaterial, irrelevant and/or redundant” (Diaz v. State of New York, 155 A.D.3d 1279, 1281, 64 N.Y.S.3d 761 [3d Dept. 2017], lv dismissed & denied 30 N.Y.3d 1101, 70 N.Y.S.3d 174, 93 N.E.3d 899 [2018]).  With respect to petitioner's challenge to the failure to provide certain documentary evidence, the Hearing Officer read the preliminary unusual incident report into the record at the hearing (see Matter of Alsima v. Bondarenka, 238 A.D.3d 1421, 1422, 236 N.Y.S.3d 351 [3d Dept. 2025];  Matter of Pitts v. Jordan, 230 A.D.3d 1457, 1459, 218 N.Y.S.3d 496 [3d Dept. 2024]) and, even if the Hearing Officer improperly denied the request for the photographs of the weapon, petitioner was not prejudiced thereby as the photographs were likewise described on the record (see Matter of Gallo v. Annucci, 164 A.D.3d 1560, 1561, 83 N.Y.S.3d 745 [3d Dept. 2018];  Matter of Rolon v. Goord, 30 A.D.3d 946, 947, 819 N.Y.S.2d 119 [3d Dept. 2006];  Matter of Bunting v. Goord, 25 A.D.3d 845, 846, 809 N.Y.S.2d 588 [3d Dept. 2006]).  Moreover, so far as petitioner requested these photographs to advance the argument that this object was too small to constitute a weapon, this argument was made during the hearing and it was within the province of the Hearing Officer, who did view the photographs in question, to reject such argument (see Matter of Bunting v. Goord, 25 A.D.3d at 846, 809 N.Y.S.2d 588).

We, nevertheless, find merit to petitioner's assertion that the Hearing Officer improperly denied his counsel's request to be present during the dispositional phase of the disciplinary hearing.  The Humane Alternatives to Long–Term Solitary Confinement Act (hereinafter the HALT Act) (L 2021, ch 93) “imposes specific limits regarding the placement of incarcerated individuals in segregated and other forms of confinement” (Matter of Peterkin v. New York State Dept. of Corr. & Community Supervision, 242 A.D.3d 26, 29, 237 N.Y.S.3d 280 [3d Dept. 2025]).  As is relevant here, prior to the passage of the HALT Act, an incarcerated individual “d[id] not have a right to counsel at [a disciplinary] hearing” (Matter of Brown v. Prack, 147 A.D.3d 1295, 1296, 46 N.Y.S.3d 334 [4th Dept. 2017];  see Matter of Laureano v. Kuhlmann, 75 N.Y.2d 141, 146, 551 N.Y.S.2d 184, 550 N.E.2d 437 [1990]).  Now, following the passage of the HALT Act, Correction Law § 137 provides that an incarcerated individual “shall be permitted to be represented” during a disciplinary hearing that may result in placement in segregated confinement “by any attorney or law student, or” with certain limitations, “any paralegal or incarcerated person” (Correction Law § 137[6][l]).  The pertinent regulations have since also been amended to specify that “[w]here an incarcerated individual is placed in, or pending possible placement in, segregated confinement pending a disciplinary hearing or superintendent's hearing, such incarcerated individual shall be permitted to be represented by,” as is relevant here, “an attorney, having good standing, admitted to practice in any state” (7 NYCRR 251–5.2[a][1]).

Therefore, pursuant to both statute and regulation, if an incarcerated individual so chooses, he or she is entitled to have representation present during a disciplinary hearing when the permissible sanctions include the imposition of segregated confinement.¹  Contrary to the Hearing Officer's determination, the dispositional phase is an integral aspect of the disciplinary hearing and the statutory and regulatory right to representation at issue here extends to that phase of the hearing.  The Legislature plainly intended representation to be available to incarcerated individuals when faced with the imposition of segregated confinement and we must give effect to that intent (see Riley v. County of Broome, 95 N.Y.2d 455, 463, 719 N.Y.S.2d 623, 742 N.E.2d 98 [2000];  Matter of Markey v. Tietz, ––– A.D.3d ––––, ––––, 241 N.Y.S.3d 536, 543 [3d Dept. 2025]).  The deprivation of that right at the stage of the proceeding where such confinement could be imposed, and at the time the incarcerated individual's chosen representative would have the opportunity to argue that the imposed sanction is unlawful pursuant to the HALT Act – as it was here – runs counter to that purpose.

That leads us to the question of what the remedy is for this violation – remittal for a new hearing or expungement of petitioner's institutional record.  “Expungement is required only when (1) the challenged disciplinary determination is not supported by substantial evidence;  (2) there has been a violation of one of the [incarcerated individual's] fundamental due process rights, as enunciated in (Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 [1974]);  or (3) other equitable considerations dictate expungement of the record rather than remittal for a new hearing” (Matter of Hillard v. Coughlin, 187 A.D.2d 136, 140, 593 N.Y.S.2d 573 [3d Dept. 1993] [citations omitted], lv denied 82 N.Y.2d 651, 601 N.Y.S.2d 580, 619 N.E.2d 658 [1993];  accord Matter of Barnes v. Fischer, 108 A.D.3d 990, 990–991, 968 N.Y.S.2d 916 [3d Dept. 2013], lv denied 22 N.Y.3d 855, 2013 WL 6065925 [2013];  see Matter of Proctor v. Annucci, 205 A.D.3d 1253, 1255, 169 N.Y.S.3d 383 [3d Dept. 2022]).  As stated above, substantial evidence supports the disciplinary determination here.  And, because incarcerated individuals “at disciplinary proceedings are not entitled to the full panoply of rights due a criminal defendant or administrative law rules designed for free citizens,” the right to counsel during a prison disciplinary hearing has not been seen as a due process right (Matter of Hillard v. Coughlin, 187 A.D.2d at 139, 593 N.Y.S.2d 573;  see Wolff v. McDonnell, 418 U.S. at 570, 94 S.Ct. 2963;  Matter of Laureano v. Kuhlmann, 75 N.Y.2d at 146, 551 N.Y.S.2d 184, 550 N.E.2d 437;  see also Matter of Texeira v. Fischer, 26 N.Y.3d 230, 233, 22 N.Y.S.3d 148, 43 N.E.3d 358 [2015]).  Thus, we do not see the interplay between Correction Law § 137(6)(l), 7 NYCRR 251–5.2 and the U.S. Constitution as mandating expungement (see Matter of Texeira v. Fischer, 26 N.Y.3d at 235, 22 N.Y.S.3d 148, 43 N.E.3d 358).  However, considering that petitioner has already served the penalty of 250 days of confinement in the special housing unit and that over 21/212 years has passed since the initial search that resulted in the discovery of the weapon at issue, we are of the view that the equitable remedy of expungement is warranted here (see Matter of Gonzalez v. Annucci, 171 A.D.3d 1265, 1266, 95 N.Y.S.3d 901 [3d Dept. 2019];  Matter of Vidal v. Annucci, 149 A.D.3d 1366, 1368–1369, 51 N.Y.S.3d 262 [3d Dept. 2017], lv denied 30 N.Y.3d 906, 2017 WL 5616056 [2017];  Matter of Balkum v. Annucci, 148 A.D.3d 1322, 1323, 48 N.Y.S.3d 556 [3d Dept. 2017];  compare Matter of Hamlett v. Kelley, 133 A.D.3d 992, 993, 18 N.Y.S.3d 887 [3d Dept. 2015]).²

The expungement of the determination finding petitioner guilty of violating a prison disciplinary rule would ordinarily render petitioner's challenge to the severity of the penalty imposed academic (see Matter of Moorer v. Annucci, 230 A.D.3d 1454, 1456, 219 N.Y.S.3d 748 [3d Dept. 2024], lv dismissed & denied 42 N.Y.3d 1093, 228 N.Y.S.3d 528, 253 N.E.3d 1261 [2025]).  Petitioner, however, does not request that this Court remit for the imposition of an appropriate penalty.  Instead, he requests that this Court issue declaratory judgment in his favor that the duration of the penalty imposed was violative of the HALT Act. To the extent such request has not been rendered moot by our determination (see generally Matter of Barnes v. Annucci, 211 A.D.3d 1277, 1278–1279, 180 N.Y.S.3d 638 [3d Dept. 2022]), declaratory relief is not authorized in a transferred proceeding pursuant to CPLR 7804(g) (see Matter of Nitti v. County of Tioga, 149 A.D.3d 1332, 1333, 53 N.Y.S.3d 378 [3d Dept. 2017]).  Therefore, under normal circumstances, remittal to Supreme Court for further proceedings and for the entry of an appropriate judgment would be required (see Matter of Ellison v. Annucci, 142 A.D.3d 1233, 1234–1235, 38 N.Y.S.3d 631 [3d Dept. 2016];  Matter of Watson v. New York State Dept. of Corr. & Community Supervision, 108 A.D.3d 817, 818, 971 N.Y.S.2d 578 [3d Dept. 2013], lv dismissed 22 N.Y.3d 914, 975 N.Y.S.2d 733, 998 N.E.2d 397 [2013], lv denied 23 N.Y.3d 902, 2014 WL 1776887 [2014]).  Petitioner, however, improperly requested declaratory relief for the first time in opposition to respondent's motion to transfer the proceeding to this Court.  As such, remittal is not required because the relief petitioner now seeks was not requested in the petition (cf.  Matter of Reid v. Venettozzi, 224 A.D.3d 1037, 1038 n. 1, 205 N.Y.S.3d 538 [3d Dept. 2024];  Matter of Mayeri v. Commissioner of the N.Y. State Dept. of Motor Vehs., 192 A.D.3d 1223, 1226 n., 143 N.Y.S.3d 442 [3d Dept. 2021], lv denied 37 N.Y.3d 908, 2021 WL 4164242 [2021];  Matter of Frye v. Commissioner of the Dept. of Corr. & Community Supervision, 175 A.D.3d 1690, 1690, 106 N.Y.S.3d 642 [3d Dept. 2019]).

ADJUDGED that the determination is annulled, without costs, petition granted and respondent is directed to expunge all references to this matter from petitioner's institutional record.

FOOTNOTES

1.   “Segregated confinement” is “the confinement of an incarcerated individual in any form of cell confinement for more than [17] hours a day” (Correction Law § 2[23]).

2.   Petitioner had been released to parole supervision, which would otherwise render remittal for a rehearing not feasible (see Matter of Pierre v. Annucci, 226 A.D.3d 1272, 1273, 209 N.Y.S.3d 659 [3d Dept. 2024];  cf.  Matter of Deboue v. Fischer, 108 A.D.3d 818, 819, 968 N.Y.S.2d 260 [3d Dept. 2013]).  In any event, he was subsequently reincarcerated during the pendency of this appeal (see Dept of Corrections and Community Supervision Incarcerated Lookup, http://nysdoccslookup.doccs.ny.gov [last accessed Dec. 12, 2025]).  Therefore, though a rehearing may be possible, it remains impractical.

Powers, J.

Garry, P.J., Clark, Aarons and Lynch, JJ., concur.