Sorrentino v. Fischer

Appellate Division of the Supreme Court of New York

Sorrentino v. Fischer

106 A.D.3d 1309, 964 N.Y.S.2d 918

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

DecidedMay 16, 2013

StatusPublished

This text of 106 A.D.3d 1309 (Sorrentino 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

Sorrentino v. Fischer, 106 A.D.3d 1309, 964 N.Y.S.2d 918 (N.Y. Ct. App. 2013).

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Opinion

Proceeding pursuant to CPLR article 78 (transferred to this [1310]*1310Court by order of the Supreme Court, entered in Albany County), to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

After a correction officer found heroin in petitioner’s room, he was found guilty of violating a prison disciplinary rule. His administrative appeal was unsuccessful, and this CPLR article 78 proceeding ensued.

We annul. Petitioner requested the testimony of three witnesses who shared a room with him. The Hearing Officer stated that inmate refusal forms for all three had been signed by the employee assistant, but not by the inmates, and that no explanations were given for their refusal to testify. Because the record does not contain any reason for the witnesses’ refusal or indicate that the Hearing Officer attempted to verify their refusal, petitioner’s regulatory right to call witnesses has been violated (see 7 NYCRR 254.5 [a]; Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; Matter of Pitts v Fischer, 98 AD3d 762, 762 [2012]). Accordingly, we must annul the determination and remit for a new hearing (see Matter of Abdur-Raheem v Prack, 98 AD3d 1152, 1153 [2012]; Matter of Pitts v Fischer, 98 AD3d at 762-763).

Rose, J.P., Lahtinen, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination is annulled, without costs, and matter remitted to respondent for further proceedings not inconsistent with this Court’s decision.

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Proceeding pursuant to CPLR article 78 (transferred to this [1310]*1310Court by order of the Supreme Court, entered in Albany County), to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

After a correction officer found heroin in petitioner’s room, he was found guilty of violating a prison disciplinary rule. His administrative appeal was unsuccessful, and this CPLR article 78 proceeding ensued.

We annul. Petitioner requested the testimony of three witnesses who shared a room with him. The Hearing Officer stated that inmate refusal forms for all three had been signed by the employee assistant, but not by the inmates, and that no explanations were given for their refusal to testify. Because the record does not contain any reason for the witnesses’ refusal or indicate that the Hearing Officer attempted to verify their refusal, petitioner’s regulatory right to call witnesses has been violated (see 7 NYCRR 254.5 [a]; Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; Matter of Pitts v Fischer, 98 AD3d 762, 762 [2012]). Accordingly, we must annul the determination and remit for a new hearing (see Matter of Abdur-Raheem v Prack, 98 AD3d 1152, 1153 [2012]; Matter of Pitts v Fischer, 98 AD3d at 762-763).

Rose, J.P., Lahtinen, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination is annulled, without costs, and matter remitted to respondent for further proceedings not inconsistent with this Court’s decision.

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Bluebook (online)

106 A.D.3d 1309, 964 N.Y.S.2d 918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sorrentino-v-fischer-nyappdiv-2013.

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