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Failure to Provide Meaningful Employee Assistance in Preparing for the Hearing Was a Constitutional, Not Merely Regulatory, Violation Requiring Expungement—Criteria Discussed in Some Depth

The Third Department determined the failure to provide the inmate with meaningful assistance leading up to his hearing required the annulment of the determination.  The court further determination that the failure was of constitutional, not merely regulatory, dimensions requiring expungement.  The issues were discussed in unusual depth:

…[P]etitioner was not provided meaningful employee assistance and that he was prejudiced thereby. Departmental regulations require that an inmate who is confined pending a superintendent’s hearing is to be provided an assistant (see 7 NYCRR 251-4.1 [d]; 254.4). The assistant’s role is to, among other things, “interview witnesses and to report the results of his [or her] efforts to the inmate” (7 NYCRR 251-4.2). The record reflects that petitioner’s girlfriend and the other individual involved provided signed written statements to correction officials and State Police investigators implicating petitioner. Although petitioner requested that his assistant interview the two women to ascertain whether their statements were truthful and voluntary and provided his assistant with a list of questions to ask them, the record reveals that no interview took place and the Hearing Officer made no attempt to remedy the deficiency when petitioner raised the issue at the disciplinary hearing. Thus, the determination must be annulled.

Petitioner further asserts that the determination should be expunged, while respondent argues that the matter should be remitted for a new hearing because this was a regulatory, not constitutional, violation. Notably, the “right to assistance is a right of constitutional dimension” … and the failure to provide assistance is a violation of 7 NYCRR 251-4.2. In this regard, our precedent is not entirely consistent, nor have we clearly articulated the appropriate factors relevant to whether expungement, rather than remittal, is warranted when a petitioner has been denied meaningful employee assistance … . We have, however, held that constitutional violations related to a Hearing Officer’s failure to investigate a witness’s refusal to testify or the outright denial of the right to call a witness results in expungement …, while regulatory violations of such right do not … .

In the case before us, petitioner’s employee assistant took no steps whatsoever to interview the requested witnesses and ask the questions posed by petitioner, and this failure clearly prejudiced petitioner by impeding his ability to assert a defense to the charges. In our view, where, as here, the denial of meaningful employee assistance is absolute and without reasonable explanation, and the Hearing Officer does not attempt to remedy the deficiencies, such denial is comparable to those instances in which we have found a constitutional violation relative to the outright denial of a witness or the failure to ascertain the basis of a witness’s refusal to testify. Thus, under these circumstances, we find the denial of meaningful employee assistance to be a constitutional violation requiring expungement of all references to the matter from petitioner’s record. Matter of Rivera v Prack, 2014 NY Slip Op 08297, 3rd Dept 11-26-14

 

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