Failure to Interview Witnesses Justified Annulment of the Determination

The Third Department determined the failure of the employee assistant to interview the witnesses identified by the petitioner and the hearing officer’s direction that witnesses not be interviewed required annulment of the determination:

We agree with petitioner that he was deprived of meaningful employee assistance. The record establishes that when petitioner complained of inadequate assistance, the hearing was adjourned to provide petitioner with additional employee assistance. Upon reconvening, petitioner again complained that, although the employee assistant interviewed the four witnesses he requested, the employee assistant failed to speak with the other 15 identified inmates involved in the incident. In response, the Hearing Officer stated that he, in fact, had instructed the employee assistant not to speak with those 15 inmates as the information petitioner was seeking was irrelevant to the determination. Under these circumstances, the employee assistant should have interviewed the inmates involved and reported back to petitioner with the results in order to assist petitioner in preparing an adequate defense … . Moreover, under these circumstances, we find that the Hearing Officer improperly interfered with and deprived petitioner of his right to employee assistance by directing the assistant not to contact 15 inmates involved in the incident on the basis that he considered the information requested to be irrelevant. Accordingly, the determination must be annulled. Matter of Williams v Fischer, 2015 NY Slip Op 03901, 3rd Dept 5-7-15