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Inadequate Effort to Provide Requested Documents and Witnesses Required Annulment of the Misbehavior Determination

The Fourth Department annulled the determination against an inmate because of inadequate assistance.  The court found that the inmate was improperly denied requested documents and witnesses:

…[W]e note that the Hearing Officer indicated that the signatures of the hall captains were illegible and thus unidentifiable, even by those officers in the block to whom the Hearing Officer had spoken, but nevertheless agreed to “try” to comply with petitioner’s request to call those witnesses. The record does not reflect any efforts made by the Hearing Officer to do so.

We further agree with petitioner that he was denied meaningful employee assistance and was prejudiced by the inadequate assistance he received. Thus, at a minimum, petitioner would have been entitled to a new hearing in any event … . Petitioner objected to the assistance provided to him, complaining that the assistant did not bring him copies of the documents being used against him and that the assistant did not want to help him. “When the inmate is unable to provide names of potential witnesses, but provides sufficient information to allow the employee [assistant] to locate the witnesses ‘without great difficulty[,’] failure to make any effort to do so constitutes a violation of the meaningful assistance requirement” … . The record fails to set forth what efforts, if any, the employee assistant made to ascertain the names of the correction officers who signed the disbursement forms and what measures, if any, the assistant took to secure their presence at the hearing. Under the circumstances, it cannot be said that “reasonable efforts were made to locate petitioner’s witnesses” … .

Furthermore, petitioner was denied the right to call a witness,i.e., the other inmate, as provided in the regulations … . “The hearsay report of a correction officer that a witness refuses to testify unaccompanied by any reason from the witness proffered to the [H]earing [O]fficer for such refusal is not a sufficient basis upon which an inmate’s conditional right to call witnesses can be summarily denied” … . Matter of Elder v Fischer, 90, 4th Dept 3-21-14

 

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