State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: September 17, 2015 520125 

________________________________

In the Matter of LEIN 

FIGUEROA,

Petitioner,

v MEMORANDUM AND JUDGMENT

ALBERT PRACK, as Director of 

Special Housing and Inmate 

Disciplinary Programs,

Respondent.

________________________________

Calendar Date: August 10, 2015

Before: Peters, P.J., McCarthy, Rose and Clark, JJ.

__________

Lein Figueroa, Comstock, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H.

Schiff 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 the Commissioner of Corrections and

Community Supervision which found petitioner guilty of violating

certain prison disciplinary rules.

Following a search of his cell, petitioner was charged in a

misbehavior report with possession of a controlled substance and

unauthorized organization. Following a tier III disciplinary

hearing, he was found guilty of the charges and, on

administrative appeal, that determination was affirmed with a

reduction in the penalty. Petitioner thereafter commenced this

CPLR article 78 proceeding.
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The misbehavior report, testimony of its author and the

testing officer, positive drug test results and other related

documentary evidence provided substantial evidence to support the

determination of guilt (see Matter of Campbell v Prack, 118 AD3d

1202, 1202-1203 [2014]). However, as the Attorney General

concedes, the determination must be annulled because petitioner

was denied his right to call a witness (see 7 NYCRR 254.5 [a];

Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]). After

petitioner requested that his cellmate at the time of the cell

search be called to testify, the Hearing Officer sent two

correction officers to retrieve him; the officers returned and

merely reported that the prospective witness had refused to

testify because "he didn't want to come out." One of the

officers signed a witness refusal to testify form that provided

no reason for the refusal and indicated that the prospective

witness had refused to sign the form. As the Hearing Officer

made no attempt to verify the witness's refusal or ascertain his

reasons for refusing to testify, despite petitioner's repeated

requests, petitioner's right to call witnesses was violated (see

Matter of Barnes v LeFevre, 69 NY2d at 650; Matter of Saez v

Fischer, 113 AD3d 961, 961 [2014]; Matter of Sorrentino v

Fischer, 106 AD3d 1309, 1310 [2013], lv granted 22 NY3d 853

[2013], appeal dismissed 22 NY3d 1060 [2014]; Matter of Dickerson

v Fischer, 105 AD3d 1232, 1232 [2013]). Since the Hearing

Officer made some effort, although inadequate, to obtain the

witness and did not deny the request outright for no reason,

petitioner's regulatory right was violated and not his

constitutional right, and remittal for a new hearing is the

appropriate remedy (see Matter Texeira v Fischer, 115 AD3d 1137,

1138 [2014], lv granted 23 NY3d 908 [2014]).

Peters, P.J., McCarthy, Rose and Clark, JJ., concur.
-3- 520125 

ADJUDGED that the determination is annulled, without costs,

and matter remitted to the Commissioner of Corrections and

Community Supervision for further proceedings not inconsistent

with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court