
    In the Matter of Larry Barnes, Appellant, v Eugene S. LeFevre, as Superintendent of Clinton Correctional Facility, et al., Respondents.
    Argued November 12, 1986;
    decided December 16, 1986
    APPEARANCES OF COUNSEL
    
      Robert F. Bensing and David C. Leven for appellant.
    
      Robert Abrams, Attorney-General (Martin A. Hotvet, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, and under the circumstances of this case, the petition granted, the determination of respondents annulled and respondents directed to expunge all references to the proceeding from petitioner’s file and to restore the good behavior allowance lost.

Petitioner, an inmate at Clinton Correctional Facility, challenges the determination of an inmate disciplinary hearing on the ground that prison officials improperly denied his right to call witnesses (see, 7 NYCRR 254.5). During the course of his testimony, petitioner indicated that a certain inmate, whose name was unknown to him, might have witnessed the incident. The hearing was adjourned and the requested witness was located. The correction officer who had ascertained the identity of the witness reported to the hearing officer that the witness refused to testify. The record neither reflects any reason for the witness’ refusal nor any indication of any effort by the respondents to ascertain any reason. The fact of the refusal was made known to petitioner upon the recommencement of the hearing which concluded with a finding of petitioner’s guilt.

Under these circumstances, we conclude that respondents have impermissibly denied to petitioner his right to call witnesses in violation of their own regulations (see, 7 NYCRR 254.5). The hearsay report of a correction officer that a witness refuses to testify unaccompanied by any reason from the witness proffered to the hearing officer for such refusal is not a sufficient basis upon which an inmate’s conditional right to call witnesses can be summarily denied. Here, where 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.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Judgment reversed, without costs, petition granted, determination of respondents annulled and respondents directed to expunge all references to the proceeding from the petitioner’s file and restore the good behavior allowance lost, in a memorandum.  