
    In the Matter of Shadron Rambert, Petitioner, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    [7 NYS3d 730]
   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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with assaulting staff, engaging in violent conduct and refusing a pat frisk after he allegedly elbowed a correction officer in the face while being frisked. Following a tier III disciplinary hearing, petitioner was found guilty and, although the penalty was modified on administrative appeal, the determination was otherwise affirmed. Petitioner thereafter commenced this CPLR article 78 proceeding.

Petitioner contends that he was denied his right to a fair hearing due to hearing officer bias. Here, the Hearing Officer clearly shifted the burden of proof when he improperly stated that it was petitioner’s burden to prove that his version of the incident, which was contrary to what was stated in the misbehavior report, was the truth. Furthermore, the Hearing Officer, in addition to other comments, questioned petitioner’s veracity on multiple occasions during the course of the hearing and, at one point, openly called petitioner “a liar.” Under these circumstances, particularly given the fact that the Hearing Officer improperly shifted the burden of proof, we find that petitioner’s right to an impartial hearing was denied (see 7 NYCRR 253.1 [b]; see generally Matter of Benito v Calero, 102 AD3d 778, 779 [2013]; Matter of Williams v Goord, 23 AD3d 872, 873 [2005]; Matter of Vicioso v Goord, 266 AD2d 655, 655-656 [1999]). As such, the determination is annulled and the matter is remitted for a new hearing (see generally Matter of Laureano v Kuhlmann, 75 NY2d 141, 148-149 [1990]).

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