State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 28, 2016 521616 

________________________________

In the Matter of DAVID

PETERSON,

Petitioner,

v

MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting 

Commissioner of Corrections

and Community Supervision,

Respondent.

________________________________

Calendar Date: June 6, 2016

Before: Lahtinen, J.P., Garry, Rose, Clark and Aarons, JJ.

__________

David Peterson, Stormville, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Frank Brady

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 correction officer heard the sounds of an altercation

coming from a room where petitioner and two other inmates were

conducting an inmate liaison committee meeting. Upon entering

the room, he found petitioner and another inmate (hereinafter the

victim) involved in a verbal disagreement. The officer then

observed bruises and puncture wounds on the victim and discovered

a weapon made out of sharpened plexiglass with a masking tape

handle in a garbage can in the room. Following an investigation,

which included statements from the victim and the other inmate
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who was present in the room at the time of the incident that

implicated petitioner, he was charged in a misbehavior report

with violating the prison disciplinary rules prohibiting assault,

fighting and possession of a weapon. Following a tier III

disciplinary hearing, petitioner was found guilty as charged and

this determination was confirmed on administrative appeal. This

CPLR article 78 proceeding ensued.

Petitioner argues, among other things, that he was denied

the right to call witnesses. "It is well settled that an inmate

has a conditional right to call witnesses at a disciplinary

hearing provided their testimony would not jeopardize

institutional safety or correctional goals" (Matter of MorrisHill v Fischer, 104 AD3d 978, 978 [2013] [citations omitted]; see

Matter of Johnson v Prack, 122 AD3d 1323, 1323 [2014]). There is

no violation of this right where a witness who has not previously

agreed to testify refuses and the reason for the refusal appears

in the record (see Matter of Chandler v Annucci, 135 AD3d 1258,

1259 [2016]; Matter of Broadie v Annucci, 131 AD3d 1324, 1324-

1325 [2015]). "Further inquiry is nonetheless required, however,

where the reason given by the witness for refusing to testify is

'clearly specious'" (Matter of Jackson v Prack, 126 AD3d 1243,

1244 [2015], quoting Matter of Beckford v Coughlin, 210 AD2d 775,

776 [1994], lv denied 85 NY2d 807 [1995]). 

During the disciplinary hearing, petitioner requested the

testimony of the other inmate who was present in the room at the

time of the incident. The Hearing Officer contacted that inmate,

who refused to testify and executed a refusal form stating, "I

know nothing." This statement, however, is belied by evidence in

the record. According to the unusual incident report, the

potential inmate witness informed correction officers that

petitioner "stabbed [the victim] with the weapon that was found

in the garbage can." Notably, the Hearing Officer specifically

referenced the witness's account of the incident in his statement

of the evidence that he relied on in making the determination of

guilt. Inasmuch as evidence in the record "casts doubt on the

authenticity of the reason[] given" for the witness's refusal

(Matter of Luna v Coughlin, 210 AD2d 757, 758 [1994]), and there

is nothing in the record indicating that the Hearing Officer made

any further inquiry, we find that petitioner's right to call
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witnesses was violated (see Matter of Jackson v Prack, 126 AD3d

at 1244; Matter of Silva v Scully, 138 AD2d 717, 720 [1988]). 

Insofar as the Hearing Officer articulated a good-faith reason

for the denial of the witness, "this amounts to a regulatory

violation requiring that the matter be remitted for a new

hearing" (Matter of Morris-Hill v Fischer, 104 AD3d at 978; see

Matter of Jackson v Prack, 126 AD3d at 1244). Petitioner's

remaining arguments are rendered academic in light of the

foregoing.

Lahtinen, J.P., Garry, Rose, Clark and Aarons, 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