This proceeding pursuant to Article 78 of the CPLR was originated by the petition of Michael Ramsey, verified on April 10, 2007, and stamped as filed in the Clinton County Clerk's Office on April 24, 2007. By Decision and Order dated May 1, 2007, the Court denied the petitioner's request for the issuance of an Order to Show Cause in a CPLR Article 78 proceeding with leave to submit an amended petition requesting such issuance. An amended petition verified on May 8, 2007, was filed in the Clinton County Clerk's Office on May 10, 2007. Petitioner, who is an inmate at the Clinton Correctional Facility, is challenging the results of two separate Tier II Disciplinary Hearings held at the Clinton Correctional Facility and concluded on March 27, 2007, and April 2, 2007. The Court issued an Order to Show Cause on May 15, 2007, and has received and reviewed respondent's Answer, verified on June 29, 2007, together with his Letter Memorandum of that date. Petitioner filed a Reply sworn to July 16, 2007, which was stamped as filed in the Clinton County Clerk's Office on July 18, 2007.

While at the Downstate Correctional Facility, petitioner was issued an inmate misbehavior report for events that occurred on March 11, 2007. The inmate misbehavior report by Correction Officer Kuinlan charged petitioner with violation of inmate rules 104.13 (creating a disturbance), 106.10 (refusing direct order), and 107.11 (harassment). CO Kuinlan alleged that during morning feed-up petitioner began yelling , that after being told he had received what he was entitled to, petitioner kept yelling, that he was given a direct order to stop yelling, that he continued to yell, and that other inmates then began to yell out of their cells and laugh.

Petitioner was also issued an inmate misbehavior report for events that occurred on March 12, 2007. The misbehavior report by Lt. Webbe charged petitioner with violation of inmate rules 104.13 (creating a disturbance), 107.10 (interference with employee), 107.20 [*2](false statements or info), and 119.10 (false alarm). Lt. Webbe alleged that petitioner had sent a letter to the Superintendent alleging that he had witnessed an officer assault another inmate, that petitioner later stated he had not observed the assault but had been told about it by the porters, and upon investigation there were no injuries observed on the alleged assaulted inmate and that inmate denied being assaulted.A Tier II Disciplinary Hearing was commenced at the Clinton Correctional Facility with respect to the March 11, 2007, charges on March 22, 2007, and concluded on April 2, 2007. Petitioner pled not guilty to the rule violations, but was found guilty of all charges. A disposition of 30 days confinement in the special housing unit, loss of packages, loss of commissary, and loss of phone privileges was imposed. Upon administrative appeal, the results and disposition of that Tier II Disciplinary Hearing were affirmed on April 5, 2007.

A Tier II Disciplinary Hearing was held and completed at the Clinton Correctional Facility with respect to the March 12, 2007, charges on March 27, 2007. Petitioner pled not guilty to the rule violations. He was found not guilty of violation of rule 104.13 (creating a disturbance), but guilty of the remaining charges. A disposition of 30 days confinement in the special housing unit, loss of packages, loss of commissary, and loss of phone privileges imposed. Upon administrative appeal, the results and disposition of this Tier II Disciplinary Hearing were reversed on April 19, 2007. As a result of this reversal, petitioner's challenge to this proceeding is moot. See Kalwasinski v. Goord, 29 AD3d 1104.

The petitioner asserts several objections with respect to the April 2, 2007, disposition: that he was improperly denied his rights both to call witnesses and to employee assistance, and that the hearing officer was biased.Petitioner seeks a judgment vacating and setting aside respondent's determination and directing that all entries made against petitioner as a result of this disciplinary hearing be expunged from his record.

Respondent asserts that, with respect to the witnesses, the Hearing Officer in fact secured the testimony of three of the five witnesses, but that the others were no longer at Downstate Correctional Facility; that petitioner met none of the criteria for receiving an assistant; and that there is no indication that the Hearing Officer was biased and that bias is not established by brusque comments.

Petitioner in his reply asserts various objections with respect to both proceedings. With respect to the proceeding that has not been administratively reversed, he replies that he should have been entitled to have witnesses regarding the basis for his complaints to staff that morning; that the Hearing Officer was biased; that records were altered or are inaccurate; and that an assistant would have been able to locate the witnesses.

Petitioner's contention that he was denied an assistant is without merit. In

Miller v. Goord, 2 AD3d 928, 929, the Court stated,

"Pursuant to 7 NYCRR 251-4.1, it is within the discretion of the Hearing Officer to grant a request for employee assistance ( see 7 NYCRR 251-4.1 [b] ). Here, it was properly denied since there were no allegations that petitioner is illiterate, non-English speaking, sensorially disabled, charged with drug use or confined pending a superintendent's hearing (see 7 NYCRR 251-4.1[a] ). Moreover, upon review, petitioner failed to demonstrate that he suffered prejudice as a result ( see Matter of Cliff v. De Celle, 260 AD2d 812, 814, 687 NYS2d 834 [1999], lv. denied 93 NY2d 814, 697 NYS2d 561, 719 NE2d 922 [1999] )." [*3]

Petitioner herein does not allege that he meets any of the above criteria or that he suffered any prejudice as a result of not being provided an assistant for his Tier II hearing.

Petitioner's claim that the Hearing Officer was biased is also without merit. The record demonstrates that although the Hearing Officer acted in what may be considered a stern manner, the hearing was conducted in a fair and impartial manner and the determination did not flow from any bias on the part of the Hearing Officer, but solely from the testimony. See Griffin v. Goord, 43 AD3d 591.

Petitioner's claim that the Hearing Officer failed to call witnesses presents a more complex issue. The witnesses requested by petitioner included a Food Service Administrator, Rabbi, and Head Cook at Downstate Correctional Facility. The Hearing Officer denied the request and completed a Witness Interview Notice stating the reason for the denial. The Hearing Officer also completed a Witness Interview Notice stating why Correction Officer Devins and inmate Moffitt did not testify. Petitioner requested that five inmates in the cells adjacent to cell 6, where the petitioner was housed and where the incident allegedly occurred, be called as witnesses. The petitioner, however, was unable to provide the names or DIN numbers of any of these potential witnesses. His identification of the witnesses was based solely on cell numbers. Three of these proposed witnesses were still at Downstate Correctional Facility and testified by speaker phone. Inmate Giammichle, who was in 5 cell, stated he did not recall or witness an incident involving inmate Ramsey. Inmate Herman, who was in 1 cell, initially testified that he was not aware of any incident but later, upon questions proposed by petitioner, stated he heard profanities and someone yelling in petitioner's cell. Inmate Kahilu, who was in 2 cell, was not aware of any incident and did not hear any argument between the petitioner and staff.

The other two proposed inmate witnesses were not called to testify and no written statement was provided to indicate why they were not called. The hearing transcript, at page 19 quotes the Hearing Officer as stating, "...[w]e've already got testimony from 3 um, 3 of the 5 inmate s that you had requested. I am not going to pursue any further trying to find out who those other two inmates are..." Inmate Ramsey replied, "They know. Aren't those, ah, if they got a log book . . ." The Hearing Officer responded, "Okay, I am not going to pursue it any further." Inmate Ramsey then stated that one of the witnesses was then at Clinton Correctional Facility, where the Tier II Disciplinary Hearing was being held. There is no record of any attempt to locate this witness at Clinton Correctional Facility. Later in the hearing, on page 26 of the transcript, the Hearing Officer states, without elaboration, that he denied the two remaining witnesses on the grounds that their testimonies would be redundant.

7 NYCCR §253.5(a) provides that an inmate at a Tier II Disciplinary Hearing "...may call witnesses on his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reason for the denial . . ." Notwithstanding the forgoing, even where no written statement is provided to the inmate, the results of an inmate disciplinary proceeding will not be set aside if the record discloses the basis for excluding the proposed witness and demonstrates that such exclusion was justified. See Laureano v. Kuhlman 75 NY2d 141, Roper v. McCoy, 227 AD2d 786 and McCorkle v. Coughlin, 194 AD2d 1034. In the case at bar, however, the hearing record sheds little light on the basis for the Hearing Officer's failure [*4]to call the two remaining inmate witnesses and the Court is ultimately not persuaded that such failure was justified. Although the excluded witnesses were not identified by name or DIN number, the petitioner did provide the Hearing Officer with specific cell locations for the witnesses on a particular date. There is nothing in the record to suggest the DOCS officials armed with this information, could not identify the names and current locations of the proposed witnesses with reasonable effort. See People ex rel Cooper v. Smith, 115 Misc 2d 689. As far as the Hearing Officer's assertion that the testimony of the two excluded witnesses would be redundant, the Court merely notes that the testimony of the three witnesses who did appear were not consistent with each other and, therefore, the testimony of the proposed witnesses could not be considered redundant.

Having concluded that the petitioner was erroneously denied the opportunity to call witnesses, the Court must next decide whether expungement or rehearing is the appropriate remedy. "Expungement will be ordered only where there has been a showing that (1) the challenged disciplinary determination is not supported by substantial evidence . . .; (2) there has been a violation of one of the inmate's fundamental due process rights, as enunciated in Wolff v. McDonnell (418 U.S. 593 . . .); or (3) other equitable considerations dictate expungement of the record rather than remittal for a new hearing." Monko v. Selsky, 246 AD2d 699 at 700,quoting Hillard v. Coughlin, 187 AD2d 136, 140, lv den 82 NY2d 651 (citations omitted). In the case at bar there has been no finding that the determination question is not supported by substantial evidence. In view of the fact that an inmate at a Tier II Disciplinary Hearing is not subject to a loss of good time or punitive confinement in excess of 30 days (see 7 NYCRR §253.7(a)(1)), the Court finds that petitioner's fundamental due process rights were not implicated by the denial of witnesses. See Sandin v. Conner, 515 U.S. 472 and Cliff v. DeCelle, 260 AD2d 812, lv den 93 NY2d 814. Accordingly, this Court's determination with respect to expungement or rehearing must be based on equitable principals. Upon consideration of such principals, the Court concludes that expungement is the appropriate remedy. In reaching this conclusion the Court notes that the charges against the petitioner were not particularly serious, as evidence by the fact that such charges were heard at a Tier II Disciplinary Hearing, rather than Tier III Superintendent's Hearing. It is also noted that the 30-day keeplock confinement and 30-day loss of privileges imposed upon disposition have already run their courses.

Based upon all of the above, it is, therefore, the decision of the Court and it is hereby

ORDERED AND ADJUDGED, that petition is granted, without costs or disbursements, but only to the extent that the results and disposition of the Tier II Disciplinary Hearing concluded on April 2, 2007, are vacated and the respondents are directed to expunge all reference to such hearing, as well as the incident underlying same, from petitioner's institutional records; and it is further

ORDERED AND ADJUDGED, that the respondents shall reimburse the petitioner's inmate account for any surcharge imposed.

DATED:October 1 , 2007 at

Indian Lake, New York.__________________________

S. Peter Feldstein [*5]

Acting Supreme Court Justice