State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 12, 2016 521698 

________________________________

In the Matter of CALVIN PAYTON,

Petitioner,

v

MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting

Commissioner of Corrections

and Community Supervision,

Respondent.

________________________________

Calendar Date: March 29, 2016

Before: Lahtinen, J.P., Egan Jr., Rose, Lynch and Mulvey, JJ.

__________

Calvin Payton, Gowanda, 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.

During the course of an investigation, a correction officer

received confidential information implicating petitioner as the

organizer of a group of inmates involved in the assault of an

inmate and the planned assault of two correction officers. The

information received also disclosed that petitioner instructed

these inmates to, among other things, refuse to attend programs

as a way of protesting the withholding of certain privileges. As

a result of his actions, petitioner was charged in a misbehavior

report with assaulting an inmate, conspiring to assault staff,

fighting, engaging in violent conduct, organizing a demonstration
-2- 521698 

and engaging in an unauthorized assembly. He was found guilty of

the charges following a tier III disciplinary hearing and the

determination was later upheld on administrative appeal. This

CPLR article 78 proceeding ensued. 

Petitioner contends, among other things, that the Hearing

Officer improperly denied him the right to have certain inmate

witnesses testify at the hearing and also failed to comply with

7 NYCRR 254.5 (a). Based upon our review of the record, we must

agree. Prior to the hearing, petitioner gave his assistant a

list of 13 potential inmate witnesses who might testify. At the

hearing, it appears that he wished to have some of these

witnesses testify, but the content of their proposed testimony

was never ascertained by the Hearing Officer. Instead, the

Hearing Officer limited the number of witnesses to three, stating

that he was not going to allow redundant testimony. 

Significantly, however, the Hearing Officer never explained the

reason that the testimony would be redundant and this is not

clear from the record. Under these circumstances, we find that

the denial of the remaining inmate witnesses was error (see

Matter of Benito v Calero, 102 AD3d 778, 780 [2013]; Matter of

Gross v Yelich, 101 AD3d 1298, 1298 [2012]). Likewise, we note

that the Hearing Officer failed to provide a written statement

setting forth the reasons for the denial as required by 7 NYCRR

245.5 (a) (see Matter of Texeira v Fischer, 26 NY3d 230, 234

[2015]; Matter of Hill v Selsky, 19 AD3d 64, 66 [2005]). 

Accordingly, the determination must be annulled. However, given

that the Hearing Officer set forth a good faith reason for the

denial on the record, he committed a regulatory violation and

remittal for a new hearing, rather than expungement, is the

appropriate remedy (see Matter of Morris-Hill v Fischer, 104

AD3d 978, 978-979 [2013]; Matter of Santiago v Fischer, 76 AD3d

1127, 1127 [2010]). In view of this, we need not address

petitioner's remaining claim.

Lahtinen, J.P., Egan Jr., Rose, Lynch and Mulvey, JJ.,

concur.
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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