Hearing Officer’s Failure to Determine Why Three Witnesses Called by the Petitioner Purportedly Refused to Testify Required Annulment and Expungement of the Disciplinary Determination

The Third Department annulled the disciplinary determination, finding that the hearing officer deprived the petitioner of his right to call witnesses by failing to investigate the witnesses’ purported refusal to testify:

Although petitioner requested that his employee assistant interview three inmate witnesses who worked in the library, the record reflects no effort by the employee assistant to interview the potential witnesses or to report the results of those efforts to petitioner. When this issue was raised at the hearing and petitioner inquired about those witnesses, the Hearing Officer adjourned the hearing in order for the employee assistant to ascertain the witnesses’ willingness to testify. Thereafter, the Hearing Officer denied the requested witnesses based upon the employee assistant’s report that all three witnesses refused to testify. No inquiry was made by the Hearing Officer as to the reasons for those witnesses’ refusal, no witness refusal forms were provided, and petitioner’s employee assistant was not called to testify regarding the circumstances as to why the witnesses refused to testify. Accordingly, the Hearing Officer deprived petitioner of his right to call witnesses and the matter must be expunged.. . Matter of Gross v Prack, 2015 NY Slip Op 03595, 3rd Dept 4-30-15