Paddyfote v. Annucci

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

Petitioner was charged in a misbehavior report with using a controlled substances after his urine twice tested positive for the presence of marihuana. Following a tier III disciplinary hearing, petitioner was found guilty and that determination was affirmed on administrative appeal with a modification to the penalty. This CPLR article 78 proceeding ensued.

Petitioner contends that he was improperly denied the right to call a witness. We agree. “[A]n ‘inmate may call witnesses on his [or her] behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals’ ” (Matter of Cortorreal v Annucci, 28 NY3d 54 , 58 [2016], quoting 7 NYCRR 254.5 [a]; see Matter of Medina v Five Points Corr. Facility, 153 AD3d 1471 , 1472 [2017]). Here, petitioner requested as a witness a representative from the manufacturer of the drug testing machine in order to refute the testimony of the correction officer who performed the urinalysis test regarding the operating procedures used to calibrate the machine. The Hearing Officer, in denying petitioner’s request, found that the representative’s testimony would necessarily be redundant to that offered by the correction officer. Upon our review of the record, however, it is unclear as to whether the correction officer’s testimony regarding how the machine was calibrated was in accord with or was a departure from the recommendations in the manufacturer’s procedural manual.^[1] Under such circumstances, we find an insufficient basis in the record to support the Hearing Officer’s conclusion that the testimony of the manufacturer’s representative would be redundant (see Matter of Medina v Five