The Third Department annulled and expunged the misbehavior determination because the record did not reflect the petitioner’s knowing and intelligent waiver of his right to be present at the hearing:
“[A]n inmate has a fundamental right to be present at his or her disciplinary hearing and, in order for an inmate to make a knowing, voluntary and intelligent waiver of that right, he or she must be informed of that right and of the consequences of failing to appear at the hearing” … . Here, while there was testimony at the continuation of the hearing that the correction officers assigned to transport petitioner advised him that the hearing would continue in his absence, a videotape of the interaction between petitioner and the officers that resulted in his refusal to attend the hearing reveals no such advisement. Notably, the correction officer did not elaborate on the reason for petitioner’s refusal, and the Hearing Officer did not inquire … . Although the record also contains a written form, signed by one of the correction officers assigned to transport petitioner to the hearing, attesting to the fact that petitioner was aware of the consequences of his refusal, petitioner did not sign the form and there is no indication on the form or anywhere else in the record as to the steps taken to either “ascertain the legitimacy of petitioner’s refusal or to inform him of . . . the consequences of his failure to [attend]” … to assert that petitioner forfeited his right to be present is unavailing because the hearing was not nearing completion at the time of the refusal. In light of the foregoing, we cannot conclude that petitioner knowingly, intelligently and voluntarily relinquished his right to attend the hearing … . Matter of Micolo v Annucci, 2017 NY Slip Op 05893, 3rd Dept 7-27-17
DISCIPLINARY HEARINGS (INMATES) (RECORD DID NOT DEMONSTRATE PETITIONER KNOWINGLY WAIVED HIS RIGHT TO BE PRESENT AT THE HEARING, DETERMINATION ANNULLED AND EXPUNGED 3RD DEPT)