Laureano v. Kuhlmann

• Decision Date: 04 January 1990
• Citation: 551 N.Y.S.2d 184,550 N.E.2d 437,75 N.Y.2d 141
• Parties: , 550 N.E.2d 437 In the Matter of Harry LAUREANO, Appellant, v. Robert KUHLMANN, as Superintendent of the Sullivan Correctional Facility, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 184

551 N.Y.S.2d 184

75 N.Y.2d 141, 550 N.E.2d 437

In the Matter of Harry LAUREANO, Appellant, v. Robert KUHLMANN, as Superintendent of the Sullivan Correctional Facility, et al., Respondents.

Court of Appeals of New York.

Jan. 4, 1990.

[75 N.Y.2d 143] [550 N.E.2d 438] Geri Pomerantz, Deborah Schneer and David C. Leven, New York City, for appellant.

[75 N.Y.2d 144] Robert Abrams, Atty. Gen. (Kathleen Liston Morrison, O. Peter Sherwood and Peter H. Schiff, Albany, of counsel), for respondents.

OPINION OF THE COURT

WACHTLER, Chief Judge.

Petitioner, an inmate at a State prison, was charged with assaulting another inmate in violation of prison regulations. After an administrative hearing the charge was sustained and various sanctions were imposed including the loss of one year of "good time". Petitioner unsuccessfully applied to the Appellate Division to have the determination set aside, claiming, as he does on this appeal, that the prison authorities violated his due process rights as well as their own regulations. The principal contentions are that he was not given an adequate statement (1) of the evidence on which the determination was based and (2) as to why his request to call two witnesses was denied. He also claims that the Appellate Division erred in remitting the case to the Hearing Officer to clarify the first point.

On October 26, 1987, an inmate, James Hauser, was assaulted at the Sullivan Correctional Facility. Petitioner, also an inmate at the facility, was charged with committing the assault, in violation of prison regulations.

At the Tier III hearing, the correction officer who filed the misbehavior report testified that he spoke to a confidential informant who witnessed the assault and identified the petitioner as the assailant. Out of the petitioner's presence and without his knowledge the Hearing Officer also interviewed the informant, who confirmed these facts and indicated that he did not wish to give public testimony because of concern for his safety. The interview was recorded and included in the record as a confidential file.

Petitioner denied committing the assault or being in the area at the time of the incident. He also called Herbert Jenkins, a prison employee assigned to assist him, who said that he had interviewed Hauser. According to Jenkins, the victim had stated that petitioner had not done anything to him and had agreed to appear as a witness for him at the hearing. However, when called for the hearing, Hauser had signed a form refusing to appear which indicated he did not wish to become involved because he feared a reprisal.

The petitioner requested that the confidential informant be called as a witness, but the Hearing Officer denied the request. He initially stated that the information was confidential. When the petitioner suggested that the informant be "interviewed in my absence" the Hearing Officer stated that this witness has "already made a statement." At the conclusion of the hearing the charge was sustained. In a written statement the Hearing Officer indicated that the determination was based on "information received from a confidential source."

Petitioner then commenced this CPLR article 78 proceeding to annul the determination on a variety of grounds including a claim that the prison authorities failed to give an adequate statement of the evidence relied upon in violation of the Constitution and their own regulations. The Appellate Division remitted the case to the Hearing Officer for clarification on this point and withheld the appeal. 144 A.D.2d 834, 534 N.Y.S.2d 572. On remittal, the Hearing Officer gave an amplified statement revealing his interview of the informant, the nature of his testimony and his reliance on this testimony recorded in the confidential transcript. The Appellate Division dismissed the petition, concluding that the amplified statement and the transcript satisfied the requirements of due process and the Commissioner's regulations. 146 A.D.2d 880, 536 N.Y.S.2d 708.

On appeal to this court, the petitioner challenges this holding and the propriety of the remittal. He also raises a number of other issues not discussed by the Appellate Division most of which relate to the refusal of the prison authorities to call the two witnesses he requested at the hearing. He claims that the Commissioner's determination should be set aside because the prison authorities violated rights guaranteed by the Constitution and their own regulations.

A prisoner charged with violating a prison regulation which could result in the loss of "good time" credit is entitled to minimal due process protections (Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935). The inmate has a right to advance written notice of the claimed violation as well as a written statement by the fact finders as to the evidence relied on and the reasons for the disciplinary action (Wolff v. McDonnell, supra, at 563-565, 94 S.Ct. at 2978; Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356). He also has a conditional right to call witnesses when that will not be unduly hazardous to institutional safety or correctional goals (Wolff v. McDonnell, supra, 418 U.S. at 566, 94 S.Ct. at 2979). But he has no right to counsel and no right to confront or cross-examine witnesses (Wolff v. McDonnell, supra, at 563-570, 94 S.Ct. at 2978-81; Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810). The hearing serves the limited purpose of permitting the inmate to produce whatever evidence he may have relating to his innocence or mitigating his guilt and there is "no requirement that the disciplinary authority call any adverse witnesses, including the charging party, to testify at the hearing" (People ex rel. Vega v. Smith, 66 N.Y.2d 130, 141, 495 N.Y.S.2d 332, 485 N.E.2d 997).

There are several reasons for limiting an inmate's rights in this manner. Chief among them is the need to reduce the risk of violence between the accused inmate and those who would charge him or furnish evidence against him. "Retaliation is much more than a theoretical possibility; and the basic and unavoidable task for providing personal safety for guards and inmates may be at stake, to say nothing of the impact of disciplinary confrontations and the resulting escalation of personal antagonisms on the important aims of the correctional process" (Wolff v. McDonnell, supra, 418 U.S. at 562, 94 S.Ct. at 2978). Thus one of the primary reasons that the inmate's right to call witnesses is conditional is that prison officials "must have the necessary discretion * * * to refuse to call witnesses that may create a risk of reprisal" (Wolff v. McDonnell, supra, at 566, 94 S.Ct. at 2980). And when this risk exists, the Hearing Officer may exclude certain items from the written statement of the evidence relied upon if revealing the information would compromise or endanger a witness (Wolff v. McDonnell, supra, at 565, 94 S.Ct. at 2979).

An inmate's constitutional rights at disciplinary proceedings are implemented by the prison regulations in this State. The regulations provide that he is entitled to a written statement of the charge, and the evidence on which the determination is based (7 NYCRR 254.6[a]; 254.7[c]. He is also granted a conditional right to call witnesses, unless the Hearing Officer determines this would "jeopardize institutional safety or correctional goals" (7 NYCRR 254.5[a]. This regulation further provides that if such a request is denied, the Hearing Officer...