Garcia v. LeFevre

— Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Clinton County) to review a determination of the Commissioner of the Department of Correctional Services finding that petitioner was guilty of violating certain disciplinary rules. 11 Petitioner, an inmate at Clinton Correctional Facility, was served with a misbehavior report signed by Correction Officer Johnson which charged him with violations of two rules of that facility prohibiting “assaults” and “any interference with an employee”. Johnson’s report described his having been engaged in pursuit of another inmate in the prison yard and, while coming down a flight of stairs, being struck in the back by petitioner and then struggling with him. They tumbled down the stairs, resulting in petitioner breaking free of his grasp and fleeing. According to the report, Johnson’s attention at that point turned back to the other inmate he had been pursuing. Johnson further stated that after that inmate was apprehended, he saw petitioner in the prison yard, obtained his identification from his facility identification card and then apprehended him. 11 At the ensuing disciplinary hearing, Johnson’s report was read to petitioner, who responded by denying that it was he who had attacked the officer. He explained that he was present in the yard when a disturbance occurred and was walking up a flight of stairs 1005 to the “hill” to participate in a religious service. There was a crowd of men coming down the hill at that point and to avoid them, he came down the hill where he was apprehended by Johnson. Petitioner stated that he had been coming from work with fellow inmate Juan Gomez when the incident occurred. He, accordingly, requested that Gomez be allowed to testify on his behalf. The hearing officer asked petitioner what he expected Gomez to say. Petitioner stated that he expected Gomez to say that he was standing at the top of the stairs waiting for petitioner, who was at the bottom, and that petitioner did not grab the officer. The hearing officer granted petitioner’s request; however, he explained to petitioner that said testimony would not be taken in petitioner’s presence (see 7 NYCRR 254.5 [b]). 1 Gomez testified in petitioner’s absence but his testimony was tape recorded. Gomez testified that he and petitioner came from work and saw a fight. He stated that they went up the stairs together side by side. Then one of the officers came up to petitioner and apprehended him, claiming that he had thrown a rock. Gomez testified that they had been going up the stairs to avoid getting hit by flying rocks. The taped testimony was played for petitioner, who offered no explanation for the discrepancy between his testimony and Gomez’s. 11 The hearing officer sustained the charges and after adverse administrative review, petitioner initiated this CPLR article 78 proceeding. 11 Petitioner was not denied his right to call a witness (7 NYCRR 254.5 [a]). Rather, pursuant to 7 NYCRR 254.5 (b), petitioner’s witness was simply not allowed to testify in his presence. Accordingly, petitioner’s allegations here are not that the witness was not called, but rather center around the fact that he was not allowed to confront the witness, whose testimony did not coincide with petitioner’s testimony. 117 NYCRR 254.5 (b) provides that: “Any witness shall be allowed to testify at the hearing in the presence of the inmate unless the hearing officer determines that so doing will jeopardize institutional safety or correctional goals. Where an inmate is not permitted to have a witness present, such witness may be interviewed out of the presence of the inmate and such interview tape recorded. The recording of the witness’ statement is to be made available to the inmate at the hearing unless the hearing officer determines that so doing would jeopardize institutional safety or correctional goals.” This procedure, which complies with Wolff v McDonnell (418 US 539, 566), was followed here.* Furthermore, it should be noted that petitioner did not object to this procedure and the record reveals that, under the circumstances of this case, there existed a sound basis for not allowing petitioner to be present while his witness testified. 11 Next, we conclude that the record contains substantial evidence to support the hearing officer’s determination (cf. Matter of Eagle v Paterson, 57 NY2d 831; Matter ofDi Maria v Ross, 52 NY2d 771). The correction officer’s report provided a detailed description of the incident and, by the description of the incident, it is apparent that the officer had a good opportunity to observe his attacker. The determination should, therefore, be confirmed. 11 Determination confirmed, and petition dismissed, without costs. Kane, J. P., Casey and Mikoll, JJ., concur. Weiss and Levine, JJ., dissent and vote to annul in a memorandum by Levine, J. Footnotes [*] Wolff v McDonnell (418 US 539, 566-569, supra) specifically left the question of confrontation and cross-examination of witnesses to “the sound discretion of the officials of state prisons”. The Supreme Court expressly rejected the contention that it was a due process right. As this court has stated, petitioner is entitled to be present or to receive a tape (Matter of Tolden v Coughlin, 90 AD2d 929). Here he listened to the tape of his witness’s testimony and was given an opportunity to comment upon its contents.