Heron v. Goord

Appeal from a judgment of the Supreme Court (Clemente, J.), entered January 8, 2004 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding him guilty of violating certain prison disciplinary rules. Petitioner was charged in two misbehavior reports with five disciplinary rule violations arising from two separate incidents. One tier III disciplinary hearing was conducted covering the violations specified in both reports. At the conclusion of the hearing, petitioner was found guilty of three of the charges. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding claiming that his due process right to call certain witnesses at the hear 701 ing was violated. Finding this claim to be without merit, Supreme Court dismissed the petition, resulting in this appeal. We affirm. The record fails to substantiate petitioner’s assertion that he was improperly denied the right to have certain inmates testify at the hearing. One of the inmates executed a written refusal form indicating that he did not see anything and would not testify. Two others, who petitioner initially requested, informed petitioner’s assistant that they were not willing to testify. This matter was discussed at the hearing at which time the Hearing Officer allowed petitioner to call two additional inmate witnesses to replace the witnesses who apparently refused to testify. The record reveals that both the alternate inmates and one of the four who was originally requested by petitioner did, in fact, testify at the hearing. Upon this record, we conclude that petitioner’s due process rights were not violated. Contrary to petitioner’s claim, it was not incumbent upon the Hearing Officer to personally interview the inmates who refused to testify to ascertain the reasons for their refusal (see e.g. Matter of Berry v Portuondo, 6 AD3d 848, 850 [2004]; cf. Matter of Contras v Coughlin, 199 AD2d 601, 602 [1993]). Cardona, EJ., Mercure, Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.