HEARING OFFICER’S DENIAL OF REQUEST FOR A WITNESS AND FAILURE TO INQUIRE INTO INMATE WINTESSES’ REFUSAL TO TESTIFY REQUIRED A NEW HEARING.

The Third Department determined the hearing officer’s denial of petitioner’s request for a witness and failure to inquire into the reasons witnesses refused to testify required a new hearing:

… [T]he Hearing Officer improperly denied petitioner’s request to have a State Police investigator testify and failed to make a proper inquiry into the reasons that certain inmate witnesses refused to testify. Although the Hearing Officer denied the investigator’s testimony as irrelevant because he was not present at the time of the attack and his investigation was separate from the one conducted by correction officials, petitioner maintained that the investigator obtained statements during the course of his investigation that materially contradicted the evidence relied upon by correction officials. Inasmuch as such testimony would have been potentially helpful to petitioner’s defense, the Hearing Officer erred in denying it. However, given that the Hearing Officer articulated a good-faith reason for such denial, this was at most a regulatory violation entitling petitioner to a new hearing and not expungement … .

As for the inmate witnesses’ refusal to testify, the Hearing Officer relied upon the notations contained in the employee assistant form indicating that they were interviewed as potential witnesses, but did not agree to testify. The Hearing Officer, however, did not make any inquiry into the reasons for their refusal or obtain written refusal forms from them. Although this constituted a denial of petitioner’s right to call witnesses, it too was only a regulatory violation inasmuch as the employee assistant had ascertained whether the inmate witnesses would be willing to testify and the Hearing Officer’s reliance on the employee assistant form constitutes a good-faith basis for denying petitioner’s request … . Matter of Mosley v Annucci, 2017 NY Slip Op 00061, 3rd Dept 1-5-17