Kane, J. (dissenting). I respectfully dissent because I do not *202construe Matter of Huggins v Coughlin (76 NY2d 904) to require that constructive notice of an inmate’s “mental distress” places his mental condition “at issue” in a prison disciplinary hearing. In my view, such an interpretation places an onerous burden on a Hearing Officer to sua sponte determine the relevance of an inmate’s mental condition, and thus improperly shifts what has been, historically, the inmate’s burden to interpose any evidence in mitigation or defense of the charges pending against him (see, Matter of Perez v Wilmot, 67 NY2d 615, 617).
Contrary to the majority’s view, the Court of Appeals "approval” in Matter of Huggins v Coughlin (supra) of People ex rel. Reed v Scully (140 Misc 2d 379) should not dictate a contrary result, for unlike the matter at hand, in Reed the court was confronted with an inmate who had been adjudicated not guilty by reason of insanity in a criminal action based on the same conduct for which the prison disciplinary hearing at issue was held (supra, at 382). Even under those circumstances, the court concluded that “the prisoner must be given the opportunity to submit proof concerning his mental state at the prison disciplinary hearing” (supra, at 382 [emphasis supplied]). Here, as the majority points out, there is no real dispute that petitioner failed to affirmatively raise his mental state as an issue at his hearing. Consequently, although in a proper case an inmate has the right to have the Hearing Officer consider his mental state at his disciplinary hearing, the inmate bears the initial burden of placing it at issue. In my view, petitioner’s failure to do so in this instance is a fatal defect and I would, therefore, confirm the determination and dismiss the petition.
Casey, Levine and Harvey, JJ., concur with Mahoney, P. J.; Kane, J., dissents in a separate opinion.
Determination annulled, without costs, and matter remitted to respondent for further proceedings not inconsistent with this court’s decision.