Pitts v. Fischer

Appellate Division of the Supreme Court of New York

Pitts v. Fischer

98 A.D.3d 762, 948 N.Y.S.2d 923

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 2, 2012

StatusPublished

This text of 98 A.D.3d 762 (Pitts v. Fischer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pitts v. Fischer, 98 A.D.3d 762, 948 N.Y.S.2d 923 (N.Y. Ct. App. 2012).

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Opinion

Appeal from a judgment of the Supreme Court (Connolly, J.), entered October 4, 2011 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

As the result of an interaction with a female correction officer, petitioner, an inmate, was found guilty of violating several prison disciplinary rules. Petitioner’s administrative appeal was unsuccessful and he thereafter commenced this CPLR article 78 proceeding challenging the determination. Supreme Court dismissed the petition and petitioner now appeals.

We reverse. At the hearing, petitioner requested the testimony of a putative eyewitness. In response, the Hearing Officer merely noted that the employee assistance form indicated that the witness was unwilling to testify and no further explanation concerning his refusal to testify appears in the record. Inasmuch as “the record does not reflect any reason for the witness’ refusal to testify, or that any inquiry was made of him as to why he refused or that the hearing officer communicated with the witness to verify his refusal to testify, there has been a denial of the inmate’s right to call witnesses as provided in the regulations” (Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; see 7 NYCRR 254.5 [a]; Matter of McFadden v Bezio, 92 AD3d 988, 989 [2012]; Matter of Martinez v Goord, 15 AD3d 737, 738 [2005]; Matter of Dawes v Selsky, 286 AD2d 806, 808 [2001]; Matter of Johnson v Goord, 247 AD2d 801, 802 [1998]). Thus, we must annul respondent’s determination and remit for a new [763]*763hearing (see Matter of Alvarez v Goord, 30 AD 3d 118, 121 [2006]).

Mercure, J.P., Rose, Spain, Stein and Egan Jr., JJ., concur. Ordered that the judgment is reversed, on the law, without costs, determination annulled, and matter remitted to respondent for further proceedings not inconsistent with this Court’s decision.

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Appeal from a judgment of the Supreme Court (Connolly, J.), entered October 4, 2011 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

As the result of an interaction with a female correction officer, petitioner, an inmate, was found guilty of violating several prison disciplinary rules. Petitioner’s administrative appeal was unsuccessful and he thereafter commenced this CPLR article 78 proceeding challenging the determination. Supreme Court dismissed the petition and petitioner now appeals.

We reverse. At the hearing, petitioner requested the testimony of a putative eyewitness. In response, the Hearing Officer merely noted that the employee assistance form indicated that the witness was unwilling to testify and no further explanation concerning his refusal to testify appears in the record. Inasmuch as “the record does not reflect any reason for the witness’ refusal to testify, or that any inquiry was made of him as to why he refused or that the hearing officer communicated with the witness to verify his refusal to testify, there has been a denial of the inmate’s right to call witnesses as provided in the regulations” (Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; see 7 NYCRR 254.5 [a]; Matter of McFadden v Bezio, 92 AD3d 988, 989 [2012]; Matter of Martinez v Goord, 15 AD3d 737, 738 [2005]; Matter of Dawes v Selsky, 286 AD2d 806, 808 [2001]; Matter of Johnson v Goord, 247 AD2d 801, 802 [1998]). Thus, we must annul respondent’s determination and remit for a new [763]*763hearing (see Matter of Alvarez v Goord, 30 AD 3d 118, 121 [2006]).

Mercure, J.P., Rose, Spain, Stein and Egan Jr., JJ., concur. Ordered that the judgment is reversed, on the law, without costs, determination annulled, and matter remitted to respondent for further proceedings not inconsistent with this Court’s decision.

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Bluebook (online)

98 A.D.3d 762, 948 N.Y.S.2d 923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pitts-v-fischer-nyappdiv-2012.

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