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INMATE PETITIONER HAD THE RIGHT TO CALL A PRISON OFFICER AS A WITNESS TO DETERMINE THE BASIS OF THE OFFICER’S KNOWLEDGE THAT PETITIONER POSSESSED A WEAPON, DETERMINATION ANNULLED BASED UPON THE DENIAL OF THAT RIGHT (SECOND DEPT).

The Second Department, annulling the disciplinary determination, held that the inmate-petitioner had the right to call a prison officer as a witness to ascertain the basis for the officer’s knowledge that petitioner possessed a weapon. The petitioner alleged the weapon was placed in the petitioner’s cell by someone else:

A prison inmate facing a disciplinary hearing is not entitled to the same level of due process as a criminal defendant  … , but there are minimum standards for disciplinary hearings. The rules of the Department of Corrections and Community Supervision expressly provide that inmates have a conditional right to call witnesses: “The inmate may call witnesses on his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented” (7 NYCRR 253.5[a]). Here, the petitioner did not dispute that the item in question was found in his cell, but he contended that the item must have been placed by someone else, and he asked that the superior officer who provided the information upon which a sergeant authorized the search be called as a witness. The hearing officer incorrectly ruled that the superior officer’s testimony was not needed simply because, as the sergeant testified, the superior officer had provided reliable information in the past. The hearing officer overlooked the fact that, absent any countervailing consideration, such as a specific threat to institutional safety or correctional goals, the petitioner was entitled to have the superior officer asked about the basis of his knowledge that contraband could be found in the petitioner’s cell … .

Since the Department of Corrections and Community Supervision failed to adhere to its own rule in the conduct of the hearing … , the determination must be annulled, all references to the determination must be expunged from the petitioner’s institutional record, and the matter remitted to the respondent for further proceedings, if the respondent be so advised … . Matter of Cumberland v Annucci, 2018 NY Slip Op 03357, Second Dept 5-9-18

​DISCIPLINARY HEARINGS (INMATES) (INMATE PETITIONER HAD THE RIGHT TO CALL A PRISON OFFICER AS A WITNESS TO DETERMINE THE BASIS OF THE OFFICER’S KNOWLEDGE THAT PETITIONER POSSESSED A WEAPON, DETERMINATION ANNULLED BASED UPON THE DENIAL OF THAT RIGHT (SECOND DEPT))/EVIDENCE (DISCIPLINARY HEARINGS (INMATES), (INMATE PETITIONER HAD THE RIGHT TO CALL A PRISON OFFICER AS A WITNESS TO DETERMINE THE BASIS OF THE OFFICER’S KNOWLEDGE THAT PETITIONER POSSESSED A WEAPON, DETERMINATION ANNULLED BASED UPON THE DENIAL OF THAT RIGHT (SECOND DEPT))

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