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DENIAL OF INMATE’S REQUEST FOR WITNESS TESTIMONY AND INCOMPLETE INVESTIGATION BY EMPLOYEE ASSISTANT REQUIRED ANNULMENT AND EXPUNGEMENT.

The Third Department determined errors made by the hearing officer and employee assistant deprived the inmate of his constitutional right to meaningful employee assistance. The determination was annulled and expunged:

Petitioner contends, among other things, that the Hearing Officer improperly denied his request to have an inmate who was involved in the initial fight testify at the hearing. The Hearing Officer denied this inmate’s testimony as irrelevant, noting that “[a]t the time of [the] incident [,] this inmate was in the process of being restrained by security staff and was face down on the floor.” However, as respondent concedes, there is no proof in the record to substantiate the Hearing Officer’s conclusion. The fight occurred in the area where petitioner allegedly assaulted staff and the requested witness may have made observations helpful to petitioner’s defense. Consequently, the Hearing Officer’s denial of this witness based upon his own speculation as to the content of the witness’s testimony was error … .

… [I]it appears from the record that the assistant interviewed only six of the 30 inmates housed in petitioner’s cell block, five of whom refused to testify and one who provided a vague written statement. It is unclear from the record what attempts, if any, petitioner’s assistant made to interview the other inmates housed in his cell block who were present during the incident. In view of this, and given that the observations of such inmates could have potentially supported petitioner’s defense, petitioner was prejudiced by his assistant’s failure to interview them and by the Hearing Officer’s failure to remedy this deficiency … . Matter of Nance v Annucci, 2017 NY Slip Op 01044, 3rd Dept 2-9-17

 

DISCIPLINARY HEARINGS (INMATES) (DENIAL OF INMATE’S REQUEST FOR WITNESS TESTIMONY AND INCOMPLETE INVESTIGATION BY EMPLOYEE ASSISTANT REQUIRED ANNULMENT AND EXPUNGEMENT)

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