The Third Department determined problems with the recording of a conversation and other evidentiary failures required annulment of the smuggling charges:
The tape-recorded conversation that was read into the record during the hearing is replete with inaudible portions rendering it impossible to ascertain if, in fact, petitioner was a participant in the smuggling plan … . Moreover, the investigator who authored the misbehavior report did not identify the coded language allegedly used during the telephone conversation that led him to believe that petitioner was involved in such a plan … . The confidential information considered by the Hearing Officer in camera — which only calls the accuracy of the conversation read into the record at the hearing into further doubt — does not remedy these deficiencies. Thus, the determination must be partially annulled. Matter of McGriff v Venettozzi, 2017 NY Slip Op 00530, 3rd Dept 1-26-17
DISCIPLINARY HEARINGS (INMATES) (FLAWED EVIDENCE REQUIRED ANNULMENT OF SMUGGLING CHARGES)