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HEARING OFFICER DID NOT ADDRESS PETITIONER’S MENTAL HEALTH STATUS, DETERMINATION ANNULLED.

The Third Department annulled the disciplinary determination because the hearing officer made no effort to ascertain the testimony of a mental health clinician or therapist (outside the presence of petitioner) after the therapist called by the petitioner refused to testify:

 

…[P]etitioner’s mental health status was at issue and the Hearing Officer erred in not taking testimony from Office of Mental Health (hereinafter OMH) personnel regarding petitioner’s mental condition (see 7 NYCRR 254.6 [c]). Although a therapist from OMH that petitioner had requested refused to testify, the Hearing Officer was obligated to interview, out of petitioner’s presence, an OMH clinician “as may be available” concerning petitioner’s mental condition (7 NYCRR 254.6 [c] [3]…). Here, the Hearing Officer made no effort to ascertain the testimony of the therapist, or any other clinician at OMH, outside the presence of petitioner. Under the circumstances presented herein, the proper remedy for the Hearing Officer’s failure to satisfy his obligations under 7 NYCRR 254.6 (b) is a new hearing to address petitioner’s mental health status… . Matter of Howard v Prack, 2016 NY Slip Op 01538, 3rd Dept 3-3-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER FAILED TO CONSIDER MEDICAL EVIDENCE SUPPORTING PETITIONER’S DEFENSE, DETERMINATION EXPUNGED)

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