Johnson v. Goord

261 A.D.2d 929, 700 N.Y.S.2d 921, 1999 N.Y. App. Div. LEXIS 5022

Opinion

—Determination unanimously annulled on the law without costs and petition granted in accordance with the following Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination that he violated inmate rule 107.20 (7 NYCRR 270.2 [B] [8] [Hi]). The Hearing Officer erred in refusing to call inmate witnesses requested by petitioner and in failing to provide a reason for that refusal (see, Matter of Boodro v Coughlin, 142 AD2d 820, 823). The record establishes that the testimony of those witnesses would have been material and not redundant, and there is no indication that permitting their testimony would have jeopardized institutional safety or correctional goals (see, 7 NYCRR 254.5 [a]). Thus, the failure to call those witnesses requires that the determination be annulled and the petition granted (see, Matter of Campbell v Hollins, 249 AD2d 994; Matter of Adams v Coughlin, 202 AD2d 1055; cf, Matter of Laureano v Kuhlman, 75 NY2d 141,147-148). In view of our decision, we do not reach petitioner’s remaining contentions. Respondents are directed to expunge all references to this incident from petitioner’s file. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Oneida County, Parker, J.) Present — Lawton, J. P., Hayes, Wisner, Hurlbutt and Scudder, JJ. [See, 267 AD2d 1104.]