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Under the Facts, the Failure to Call a Witness Requested by the Inmate Was a Regulatory, Not a Constitutional, Violation—New Hearing Ordered

The Fourth Department noted that where a good faith reason for not calling a witness requested by the inmate appears on the record, the error is regulatory, not constitutional, in nature and a new hearing, not expungement, is required:

…[T]he Hearing Officer violated petitioner’s right to call witnesses as provided in the regulations (see 7 NYCRR 254.5…). Although petitioner seeks expungement, he is not entitled to that relief at this juncture. Where, as here, “a good faith reason for the denial appears on the record, this amounts to a regulatory violation” rather than a violation of petitioner’s constitutional rights, “requiring that the matter be remitted for a new hearing” … . Matter of Johnson v Prack, 2014 NY Slip Op 07859, 4th Dept 11-14-14

 

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