The Third Department determined the hearing officer’s refusal to call a witness requested by the inmate required annulment:
Petitioner contends, among other things, that he was improperly denied the right to call as a witness an inmate who allegedly overheard a conversation between petitioner and the author of the misbehavior report establishing that the author lied about seeing petitioner place drugs on the food tray. According to petitioner, during this conversation the correction officer admitted that he reported that he saw petitioner put the drugs in the food tray in order to “cover his ass” after being advised to do so by another correction officer. At the hearing, petitioner maintained that the verbal exchange between the two officers revealing that the author was advised to make this misrepresentation was captured on a videotape of the area outside the observation room. When the videotape was played at the hearing, however, the audio was not working. Consequently, the only evidence that could potentially corroborate petitioner’s defense was the testimony of the other inmate. Matter of McFarlane v Annucci, 2016 NY Slip Op 08432, 3rd Dept 12-15-16
DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER’S REFUSAL TO CALL A REQUESTED WITNESS REQUIRED ANNULMENT OF THE DETERMINATION)