“Clearly Specious” Reason for Fellow Inmate’s Refusal to Testify Warranted Further Inquiry

The Third Department determined the hearing officer was obligated to inquire into an inmate’s (Douglas’) refusal to testify at petitioner’s hearing because the reason for the refusal was obviously specious:

As a general rule, “no violation of the right to call witnesses will be found when there was no prior assent to testify, but the reason for the refusal appears in the record” … . Further inquiry is nonetheless required, however, where the reason given by the witness for refusing to testify is “clearly specious” … . Here, Douglas’ claim to have no relevant knowledge is belied by the record evidence, which demonstrates that he was aware of the interactions between petitioner and the officer and, moreover, suggests that he was involved in the conspiracy against the officer. Therefore, because the hearing evidence “cast[] doubt on the authenticity of the reasons given” for Douglas’ refusal to testify, the Hearing Officer erred in accepting his alleged lack of knowledge at face value and conducting no additional inquiry … . Inasmuch as the determination is otherwise supported by substantial evidence and the Hearing Officer articulated “a good-faith reason for the denial [of Douglas as a witness] . . ., this amounts to a regulatory violation requiring that the matter be remitted for a new hearing” … . Matter of Jackson v Prack, 2015 NY Slip Op 02527, 3rd Dept 3-26-15