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Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987
2006
2026
Top citers, strongest first. 36 distinct citers.
How cited ↗
discussed
Cited as authority (rule)
Matter of Bright v. Martuscello
As respondent correctly concedes, the September 14, 2023 determination must be annulled in its entirety because petitioner was denied his right to call witnesses ( see Matter of Barnes v LeFevre , 69 NY2d 649, 650 [1986]; Matter of Elder v Fischer , 115 AD3d 1177, 1178 [4th Dept 2014]; see also 7 NYCRR 254.5 [a]).
discussed
Cited as authority (rule)
Matter of Diaz v. Annucci
Although there was a discussion at the hearing that the alleged victim would have to agree to testify, there is no indication that the alleged victim refused to testify or that the Hearing Officer made any effort to procure him as a witness. "[W]here the record does not reflect any reason for the witness' refusal to testify, or that any inquiry was made of him [or her] as to why he [or she] refused or that the [H]earing [O]fficer communicated with the witness to verify his [or her] refusal to testify, there has been a denial of the [incarcerated individual's] right to call witnesses as provide…
discussed
Cited as authority (rule)
Matter of Ballard v. Annucci
The record does not contain a signed witness refusal form or any explanation for the inmate's refusal to testify ( see Matter of Barnes v LeFevre , 69 NY2d 649, 650 [1986]; cf. Matter of Cortorreal v Annucci , 28 NY3d 54, 57, 60 [2016]; Matter of Weston v Annucci , 153 AD3d 1537, 1537 [2017]).
discussed
Cited as authority (rule)
Matter of Doleman v. Prack
Accordingly, as the record fails to reflect any reason for the witnesses’ refusals to testify or any inquiry into their reasons for refusing, we uphold Supreme Court’s determination that petitioner was denied his right to call these witnesses (see Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; Matter of Sorrentino v Fischer, 106 AD3d 1309 , 1310 [2013], appeal dismissed 22 NY3d 1060 [2014]; Matter of Samuels v Fischer, 98 AD3d 776, 777 [2012]; Matter of Moye v Fischer, 93 AD3d 1006, 1007 [2012]).
discussed
Cited as authority (rule)
Matter of Hamlett v. Prack
By refusing the hearing officer’s offer to personally interview his requested witnesses as to their reasons for refusing to testify, the petitioner waived his contention that the hearing officer failed to make a meaningful effort to secure the testimony of those witnesses (cf. Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; Matter of Cordova v Coughlin, 206 AD2d 475, 476 [1994]).
cited
Cited as authority (rule)
The Matter of George Texeira v. Brian Fischer
This Court has previously cured violations of inmates’ rights through ex-pungement (see Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]).
discussed
Cited as authority (rule)
Matter of Figueroa v. Prack
However, as the Attorney General concedes, the determination must be annulled because petitioner was denied his right to call a witness (see 7 NYCRR 254.5 [a]; Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]).
discussed
Cited as authority (rule)
Elder v. Fischer
Furthermore, petitioner was denied the right to call a witness, i.e., the other inmate, as provided in the regulations (see Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; Matter of Robinson v Fischer, 68 AD3d 1687, 1688 [2009]).
discussed
Cited as authority (rule)
Elder v. Fischer
Furthermore, petitioner was denied the right to call a witness, i.e., the other inmate, as provided in the regulations (see Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; Matter of Robinson v Fischer, 68 AD3d 1687, 1688 [2009]).
discussed
Cited as authority (rule)
Sorrentino v. Fischer
Because the record does not contain any reason for the witnesses’ refusal or indicate that the Hearing Officer attempted to verify their refusal, petitioner’s regulatory right to call witnesses has been violated (see 7 NYCRR 254.5 [a]; Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; Matter of Pitts v Fischer, 98 AD3d 762, 762 [2012]).
discussed
Cited as authority (rule)
Sorrentino v. Fischer
Because the record does not contain any reason for the witnesses’ refusal or indicate that the Hearing Officer attempted to verify their refusal, petitioner’s regulatory right to call witnesses has been violated (see 7 NYCRR 254.5 [a]; Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; Matter of Pitts v Fischer, 98 AD3d 762, 762 [2012]).
discussed
Cited as authority (rule)
Pitts v. Fischer
Inasmuch as “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” (Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; see 7 NYCRR 254.5 [a]; Matter of McFadden v Bezio, 92 AD3d 988, 989 [2012]; Matter of Martinez v Goord, 15 AD3d 737, 738 [2005]; Matter of Dawes v Selsky, 286 AD2d 806, 808 [2001]; Matter of Johnson v Goo…
discussed
Cited as authority (rule)
Samuels v. Fischer
The determination was upheld upon petitioner’s administrative appeal and this CPLR article 78 proceeding challenging that determination ensued. * We agree with petitioner that his conditional right to call witnesses was violated at the hearing (see Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; Matter of Hill v Selsky, 19 AD3d 64, 66 [2005]).
discussed
Cited as authority (rule)
Pitts v. Fischer
Inasmuch as “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” (Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; see 7 NYCRR 254.5 [a]; Matter of McFadden v Bezio, 92 AD3d 988, 989 [2012]; Matter of Martinez v Goord, 15 AD3d 737, 738 [2005]; Matter of Dawes v Selsky, 286 AD2d 806, 808 [2001]; Matter of Johnson v Goo…
discussed
Cited as authority (rule)
Samuels v. Fischer
The determination was upheld upon petitioner’s administrative appeal and this CPLR article 78 proceeding challenging that determination ensued. * We agree with petitioner that his conditional right to call witnesses was violated at the hearing (see Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; Matter of Hill v Selsky, 19 AD3d 64, 66 [2005]).
cited
Cited as authority (rule)
Moye v. Fischer
This principle applies as well where a requested witness has refused to testify (see Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; Matter of Hill v Selsky, 19 AD3d at 66 ).
discussed
Cited as authority (rule)
Jamison v. Fischer
While regulatory violations of this right will necessitate remittal for a new hearing, constitutional violations require expungement (see Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; Matter of Contras v Coughlin, 199 AD2d 601, 602-603 [1993]; see generally Matter of Alvarez v Goord, 30 AD3d 118, 120 [2006]).
cited
Cited as authority (rule)
Robinson v. Fischer
Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; Matter of Alvarez v Goord, 30 AD3d 118 [2006]; Matter of Martinez v Goord, 15 AD3d 737, 738 [2005]).
discussed
Cited as authority (rule)
Hill v. Selsky
That right is implemented by 7 NYCRR 254.5 (a), which requires that when an inmate’s request to call a witness is denied, “the hearing officer shall give the inmate a written statement stating the reasons for the denial.” Although this requirement clearly pertains when a hearing officer denies an inmate’s request because institutional safety or correctional goals are jeopardized (see 7 NYCRR 254.5 [a]; Matter of Laureano v Kuhlmann, supra at 146-147), and when a requested inmate would provide testimony that is either irrelevant or redundant (see Matter of Daum v Goord, 274 AD2d 715, 71…
discussed
Cited as authority (rule)
Martinez v. Goord
It is well settled that “[t]he 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” (Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; see Matter of Dawes v Selsky, 286 AD2d 806, 808 [2001]; Matter of Moore v Goord, 281 AD2d 736, 737 [2001]; Matter of Johnson v Goord, 247 AD2d 801, 802 [1998]).
discussed
Cited as authority (rule)
Luna v. Coughlin
The Hearing Officer was furnished specific reasons for the inmate’s refusal to testify (compare, Matter of Barnes v LeFevre, supra, at 650; Matter of Contras v Coughlin, 199 AD2d 601, 602 ), and for his refusal to sign a written refusal form or to further explain why he would not testify.
discussed
Cited as authority (rule)
Silva v. Scully
As noted in Matter of Barnes , "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” (Matter of Barnes v LeFevre, supra, at 650).
discussed
Cited "see"
Matter of Adams v. Annucci
Respondent correctly concedes that the Hearing Officer violated petitioner's right to call witnesses as provided in the regulations ( see 7 NYCRR 254.5; see generally Matter of Barnes v LeFevre , 69 NY2d 649, 650 [1986]).
discussed
Cited "see"
Johnson v. Prack
Here, as respondent correctly concedes, the Hearing Officer violated petitioner’s right to call witnesses as provided in the regulations (see 7 NYCRR 254.5; see generally Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]).
discussed
Cited "see"
Johnson v. Prack
Here, as respondent correctly concedes, the Hearing Officer violated petitioner’s right to call witnesses as provided in the regulations (see 7 NYCRR 254.5; see generally Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]).
discussed
Cited "see"
JOHNSON, LATIQUE v. PRACK, ALBERT
Here, as respondent correctly concedes, the Hearing Officer violated petitioner’s right to call witnesses as provided in the regulations (see 7 NYCRR 254.5; see generally Matter of Barnes v LeFevre, 69 NY2d 649, 650 ).
discussed
Cited "see"
Stallone v. Fischer
“A disciplinary determination cannot stand when a denial of the inmate’s request to call a witness, or to be present when his witness testifies, is wholly unexplained . . . but will not be set aside if the record discloses the basis for the denial” (Matter of Laureano v Kuhlmann, 75 NY2d at 147 ; see Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]; Matter of Wiederhold v Scully, 141 AD2d 550, 550-551 [1988]).
discussed
Cited "see"
Bates v. Coughlin
Petitioner also contends that the Hearing Officer provided an improper reason for refusing to permit an inmate named Porter to testify, as requested by petitioner (7 NYCRR 254.5 [2]; see, Matter of Barnes v LeFevre, 69 NY2d 649 ), but again we see no prejudice to petitioner.
discussed
Cited "see, e.g."
Texeira v. Fischer
Accordingly, Supreme Court correctly held that this error constituted a violation of petitioner’s regulatory right set forth in 7 NYCRR 254.5, thus “requiring annulment of the determination but not mandating expungement” (Matter of Alvarez v Goord, 30 AD3d at 121 ; compare Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986], with Matter of Abdur-Raheem v Brack, 98 AD3d 1152 , 1153 [2012]).
discussed
Cited "see, e.g."
Texeira v. Fischer
Accordingly, Supreme Court correctly held that this error constituted a violation of petitioner’s regulatory right set forth in 7 NYCRR 254.5, thus “requiring annulment of the determination but not mandating expungement” (Matter of Alvarez v Goord, 30 AD3d at 121 ; compare Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986], with Matter of Abdur-Raheem v Brack, 98 AD3d 1152 , 1153 [2012]).
discussed
Cited "see, e.g."
Saez v. Fischer
Accordingly, the determination must be annulled and the matter remitted for a new hearing (see Matter of Dickerson v Fischer, 105 AD3d 1232, 1232 [2013]; compare Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]).
discussed
Cited "see, e.g."
Saez v. Fischer
Accordingly, the determination must be annulled and the matter remitted for a new hearing (see Matter of Dickerson v Fischer, 105 AD3d 1232, 1232 [2013]; compare Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]).
discussed
Cited "see, e.g."
Alvarez v. Goord
The regulation has been extended to cover sitúa tions where a hearing officer has not denied a witness, but the requested inmate witness refuses to testify (see Matter of Hill v Selsky, 19 AD3d 64, 66 [2005]; see also Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]).
discussed
Cited "see, e.g."
Maier v. Coughlin
In light of these circumstances, and given the denial of petitioner’s right to call witnesses, we find that expungement was appropriate (see, Matter of Williams v Coughlin, 145 AD2d 771 ; Matter of Allah v LeFevre, 132 AD2d 293 ; see also, Matter of Barnes v LeFevre, 69 NY2d 649 ).
discussed
Cited "see, e.g."
Curry v. Kelly
In these circumstances, equity dictates that expungement of the record, rather than remittitur, is the proper remedy (see, Matter of Allah v LeFevre, 132 AD2d 293, 295 ; Matter of Cunningham v LeFevre, 130 AD2d 809, 810 ; Matter of Vogelsang v Coombe, 105 AD2d 913 , affd 66 NY2d 835 ; see also, Matter of Barnes v LeFevre, 69 NY2d 649, 650 ).
discussed
Cited "see, e.g."
Cunningham v. LeFevre
Under these circumstances, we agree with Supreme Court’s decision that expungement is the proper remedy (see, Matter of Vogelsang v Coombe, 105 AD2d 913, 914 , affd, 66 NY2d 835 ; Matter of Justice v Smith, 69 AD2d 1018; see also, Matter of Barnes v LeFevre, 69 NY2d 649 ).
Retrieving the full opinion text from the archive…
In the Matter of Larry Barnes, Appellant,
v.
Eugene S. LeFevre, as Superintendent of Clinton Correctional Facility, Et Al., Respondents
v.
Eugene S. LeFevre, as Superintendent of Clinton Correctional Facility, Et Al., Respondents
New York Court of Appeals.
Dec 16, 1986.
503 N.E.2d 1022
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.
Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., Concur.
Cited by 68 opinions | Published
OPINION OF THE COURT
Memorandum.
The judgment of the Appellate Division should be reversed, and under the circumstances of this case, the petition granted,[*650] 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.