IN RE: John CROSBY (2005)

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Prison officials opened a letter sent by petitioner to his girlfriend prior to the letter's return to petitioner due to lack of postage.   In the letter, petitioner indicated that another inmate had written it so as to mislead prison officials and requested that his girlfriend bring “dope” contained in balloons to him on her next visit.   As a result, a misbehavior report was written charging petitioner with violating prison disciplinary rules prohibiting solicitation, conspiring to bring narcotics into the facility, smuggling and providing misleading information.   A tier III disciplinary hearing was conducted and petitioner was found guilty of all charges.   Upon administrative review, the determination was upheld, prompting petitioner to commence this proceeding pursuant to CPLR article 78 to review the determination.

An inmate has a conditional right to call witnesses at a disciplinary hearing (see 7 NYCRR 254.5).   Failure to make appropriate inquiry into a requested inmate witness's refusal to testify constitutes a deprivation of that right (see Matter of Hill v. Selsky, 19 A.D.3d 64, 65-67, 795 N.Y.S.2d 794 [2005];  Matter of Dawes v. Selsky, 286 A.D.2d 806, 808, 730 N.Y.S.2d 563 [2001] ).   The efforts made to secure the testimony of the inmate who petitioner alleges wrote the letter or to ascertain his reasons for refusing to testify were inadequate.   The requested inmate witness did not sign the witness refusal form (cf. Matter of Nimmons v. Goord, 7 A.D.3d 887, 888, 776 N.Y.S.2d 629 [2004];  Matter of Jimenez v. Goord, 264 A.D.2d 918, 919, 694 N.Y.S.2d 823 [1999] ).   Furthermore, the employee who attempted to secure the inmate's testimony did not testify regarding the circumstances of his refusal or any inquiry made about the reason for his refusal, nor does the record reflect that the Hearing Officer personally conducted any such inquiry (cf. Matter of Berry v. Portuondo, 6 A.D.3d 848, 850, 775 N.Y.S.2d 110 [2004];  Matter of Matos v. Goord, 293 A.D.2d 855, 856, 739 N.Y.S.2d 857 [2002] ).   Accordingly, the determination must be annulled (see Matter of Hill v. Selsky, supra at 67-68, 795 N.Y.S.2d 794 [2005];  Matter of Dawes v. Selsky, supra at 808, 730 N.Y.S.2d 563).   In light of the foregoing, petitioner's remaining contentions need not be addressed herein.

ADJUDGED that the determination is annulled, without costs, petition granted and the Commissioner of Correctional Services is directed to expunge all references to this matter from petitioner's institutional record and restore any loss of good time.

KANE, J.

CREW III, J.P., CARPINELLO and ROSE, JJ., concur.