Barnes v. LeFevre

Per Curiam.

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 respondent Commissioner of Correctional Services finding petitioner guilty of violating certain disciplinary rules.

Petitioner, an inmate at Clinton Correctional Facility, was served with a misbehavior report alleging that he assaulted Correction Officer Lyndon Johnson as he was about to be escorted to a Tier III hearing. The report was indorsed by two other officers who participated in the ensuing struggle to subdue petitioner. At the subsequent hearing following his plea of not guilty, petitioner requested that the "feed up” man on the day of the incident, whose name he did not know, be called as a witness. The hearing was adjourned and an effort was made to determine the identity of the requested witness. The witness was located and, in accordance with the hearing record sheet, was interviewed and refused to testify. The hearing continued with Johnson’s testimony and concluded with a finding of petitioner’s guilt. No further request for any witnesses was made by petitioner.

In this proceeding, it is petitioner’s contention that (1) it was the duty of the hearing officer to compel the recalcitrant witness to testify, (2) certain exculpatory documentary evidence should have been examined by the hearing officer, and (3) there is a lack of substantial evidence to sustain the charge against petitioner. Initially, we reject the substantial evidence argument. The hearing officer was presented with conflicting versions of an incident provided by the participants therein. He accepted the version given by Johnson, which, together with the written report, provides more than substantial evidence to sustain his determination (see, Matter of Burgos v Coughlin, 108 AD2d 194, 196-197). Next, there is no indication in the record before us that petitioner directly requested the hearing officer to examine or produce any records on his behalf. He was specifically asked at the end of the hearing if he desired to present any further evidence, and he responded in the negative.

Finally, we find no violation of petitioner’s rights by the hearing officer’s failure to compel the testimony of a requested witness who refused to testify. Every effort was made to identify and locate the "feed up” man requested by petitioner and he was fully aware of the witness’s refusal to testify. Accordingly, there was no denial of petitioner’s right to call witnesses and, thus, no violation of any rule or regulation providing for such a right (see, 7 NYCRR 254.5 [a]).

Determination confirmed, and petition dismissed, without costs. Kane, J. P., Main, Yesawich, Jr., and Harvey, JJ., concur.