97 A.D.2d 862 | N.Y. App. Div. | 1983
Appeal from a judgment of the Supreme Court at Special Term (Bradley, J.), entered November 1, 1982 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to, inter alia, annul a determination made by respondents after a superintendent’s proceeding which affirmed charges of misconduct. On December 13, 1981, petitioner was an inmate at the Auburn Correctional Facility confined to a cell in the special housing unit (SHU) under administrative protection (i.e., for nondisciplinary reasons). At about 2:00 p.m. on that day, Correction Officers (C.O.) Grebleski and Clarke went to his cell to take him to make a phone call to his family. Outside petitioner’s cell, C.O. Clarke began a pat frisk of petitioner who vigorously objected to the manner in which the frisk was being carried out, claiming that the guard’s hands were improperly “going over my bottom”. The pat frisk was not completed. Two inmates corroborated petitioner’s assertion. Thereafter, a struggle occurred at the phone room between petitioner and C.O. Clarke. Sergeant Mahunik and C.O. Grebleski joined in the fracas and petitioner was restrained. Descriptions of the incident by correction officers differed from that given by petitioner. However, the version given by C.O. Pratt, the only officer petitioner requested to testify for him, was similar to that related by petitioner with the exception of who beat whom. As a result of this fracas, petitioner sustained swelling in the left cheek, abrasions on the upper and lower lips and the right shoulder, a fracture of the nasal bone, and possibly a chipped tooth. C.O. Clarke received lacerations on the left ear, right cheek and under the right eye. C.O. Grebleski injured his right hand. It was alleged that petitioner injured himself when he banged his head and face against the wall in attempting to free his head from the grip of Clarke’s hand. Misbehavior reports were filed charging petitioner with violation of three prison disciplinary rules and the matter was referred to a superintendent’s proceeding. On December 17, 1981, an employee assistant
It should be noted that the departmental regulations applicable to this case were changed as of June 15, 1983. Because they are basically procedural changes, they need not be applied to these facts on appeál (Matter of Board of Trustees [Maplewood Teachers’ Assn.], 57 NY2d 1025, 1027). However, they do resolve for future cases the issues raised herein. The changes are as follows. First, under the new regulations, all requests for witnesses, whether made to an employee assistant or a hearing officer and whether made before or during the hearing, will be treated in the manner of a request under the due process clause of the Federal Constitution (7 NYCRR 254.5 [a], [c]). Second, for the first time the regulations embody the inmate’s due process right either to be present when witnesses are testifying or to hear a recording of the testimony (7 NYCRR 254.5 [b]), and additionally they give the inmate the opportunity to reply to the evidence presented (7 NYCRR 254.6 [c]). The need under the old regulations for the hearing officer to relate to the inmate the evidence supporting the charge and allow the inmate to comment before affirming no longer exists and is no longer required (7 NYCRR 254.7 [a]). Third, the provision for automatic review by the commissioner under certain circumstances has been eliminated and replaced with the requirement that the commissioner decide any appeal within 60 days of receipt (7 NYCRR 254.8).