Maier v. Coughlin

193 A.D.2d 1015, 598 N.Y.S.2d 118, 1993 N.Y. App. Div. LEXIS 5092

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 1993
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Cardona, J.), entered February 3, 1992 in Ulster County, which granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty after a Superintendent’s hearing of violating State-wide rules prohibiting assault upon an inmate, disobeying a direct order and possession of a weapon. After affirmance on administrative appeal petitioner commenced this proceeding to annul the determination, alleging that he was denied his right to call certain witnesses. Supreme Court found that the Hearing Officer had not made a meaningful effort to secure the testimony of the witnesses and expunged petitioner’s record. Respondent appeals, conceding that petitioner was denied his right to call witnesses but contending that remittal for a rehearing and not expungement is the proper remedy.

A significant amount of time has passed since the incident. In addition, one witness is dead and another has been released on parole. In light of these circumstances, and given the denial of petitioner’s right to call witnesses, we find that expungement was appropriate (see, Matter of Williams v Coughlin, 145 AD2d 771; Matter of Allah v LeFevre, 132 AD2d 293; see also, Matter of Barnes v LeFevre, 69 NY2d 649).

Mikoll, J. P., Yesawich Jr., Mercure, Crew III and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.