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THERE WAS NO GOOD REASON TO DENY PETITIONER’S REQUEST FOR A WITNESS, DETERMINATION ANNULLED AND EXPUNGED.

The Third Department determined the hearing officer improperly and without good cause refused to call a witness requested by the petitioner. The determination was therefore annulled and expunged:

Among petitioner’s many contentions is that he was improperly denied his right to call certain witnesses at the hearing. Notably, his defense that he did not act in the manner alleged in the misbehavior report was very much dependent on the testimony of witnesses, correction officers and inmates alike, who were present in the mess hall and who may have observed his actions. In this regard, petitioner asserts that he was improperly denied the right to call the correction officer who was stationed in the gas booth overseeing the mess hall at the time of the incident. The Hearing Officer denied this witness on the basis that “the staff in the gas booth have the entire messhalls . . . to watch and would not be expected to know the details of each incident.” Petitioner objected, stating at the hearing that “the guy in the gas booth would be able to honestly see this incident and give the perfect testimony . . . of what transpired because he’s the guy that controls the gas and if it was a bigger incident tha[n] what it was he’d have to drop the gas.” …

Respondent, however, urges that remittal for a new hearing is the appropriate remedy. Under the particular circumstances presented here, we disagree. Although the Hearing Officer articulated a reason for the denial, the legitimacy of that reason is suspect given that the gas booth officer was in the mess hall for the very purpose of watching the activities of the inmates and responding to problems. There is no support in the record for the Hearing Officer’s baseless conclusion that the officer on duty did not have knowledge of the incident involving petitioner. Matter of Balkum v Annucci, 2017 NY Slip Op 01741, 3rd Dept 3-9-17

 

DISCIPLINARY HEARINGS (INMATES) (THERE WAS NO GOOD REASON TO DENY PETITIONER’S REQUEST FOR A WITNESS, DETERMINATION ANNULLED AND EXPUNGED)

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