Benito v. Calero
Opinion of the Court
Froceeding pursuant to CFLR article 78 to review a determination of the Commissioner of the New York State Department of Correctional Services dated August 19, 2010, which affirmed a determination of a hearing officer dated June 8, 2010, as modified June 30, 2010, made after a tier III disciplinary hearing, that the petitioner was guilty of violating prison disciplinary rules 113.13 and 113.23 (7 NYCRR 270.2 [B] [14] [iii], [xiii]).
Adjudged that the petition is granted, without costs or disbursements, the determination is annulled, the respondent is directed to expunge all references to the determination from the petitioner’s institutional record, and the matter is remitted to the respondent for further proceedings in accordance herewith if the respondent be so advised.
The petitioner, an inmate at the Sing Sing Correctional Facility, was charged with violating two prison disciplinary rules for having alcohol in his cell (see 7 NYCRR 270.2 [B] [14] [iii], [xiii]). The petitioner had not been present during the search of his cell, and he requested that two inmates who allegedly had been present be called as witnesses regarding the search. The hearing officer denied the petitioner’s request on the ground
“A prison disciplinary determination made as a result of a hearing at which evidence was taken pursuant to direction by law must be supported by substantial evidence” (Matter of Adamson v Barto, 37 AD3d 597, 598 [2007]; see CPLR 7803 [4]; Matter of Farooq v Fischer, 99 AD3d 709, 711 [2012]; Matter of Vaughn v Orlando, 79 AD3d 1048, 1049 [2010]). Substantial evidence “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). “[Substantial evidence is less than a preponderance of the evidence and, as a burden of proof, it demands only that a given inference is reasonable and plausible, not necessarily the most probable” (Matter of Miller v DeBuono, 90 NY2d 783, 793 [1997] [citation and internal quotation marks omitted]). Here, there was substantial evidence at the hearing supporting a finding that the petitioner was guilty of violating the charged prison disciplinary rules. Because the nature of alcohol is a matter of common knowledge, no special expertise or scientific testing is required (see Matter of Sorrentino v Fischer, 78 AD3d 1354, 1355 [2010]; Matter of Hernandez v Selsky, 62 AD3d 1177, 1178 [2009]; Matter of Collins v Goord, 272 AD2d 703 [2000]). The testimony of the officers at the hearing was sufficient to establish that the substance was alcohol. The petitioner’s denial merely presented a credibility issue (see Matter of O’Reilly v Goord, 270 AD2d 858, 858 [2000]).
Nevertheless, the petition must be granted. “A hearing officer’s actual outright denial of a witness without a stated good-faith reason, or lack of any effort to obtain a requested witness’s testimony, constitutes a clear constitutional violation” (Matter of Alvarez v Goord, 30 AD3d 118, 121 [2006]; see Matter of Edwards v Fischer, 87 AD3d 1328, 1330 [2011]; Matter of Reyes v Goord, 20 AD3d 830, 831 [2005]). Indeed, the rules of the Department of Corrections and Community Supervision expressly provide that inmates have a conditional right to call
Case-law data current through December 31, 2025. Source: CourtListener bulk data.