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PETITIONER WAS NEVER INFORMED OF HIS RIGHT TO CALL WITNESSES, DETERMINATION ANNULLED AND RECORD EXPUNGED (THIRD DEPT).

The Third Department annulled the determination and expunged the inmate’s record because he was never informed of his right to call witnesses:

While petitioner did not, at the hearing, request that the inmate be called to testify or demand that there be a further inquiry into his refusal… , the record does not reflect that petitioner was ever advised of his constitutional or regulatory right to call witnesses at the hearing … . The constitutional right to call witnesses at a prison disciplinary proceeding “is not waivable in the absence of [an inmate] being informed of its existence”… . As such, the determination must be annulled. Given that petitioner’s due process rights were violated and that this situation is comparable to the outright denial of the constitutional right to call witnesses, expungement is the proper remedy … . Matter of Ballard v Annucci, 2018 NY Slip Op 04625, Third Dept 6-21-18

​DISCIPLINARY HEARINGS (INMATES) (PETITIONER WAS NEVER INFORMED OF HIS RIGHT TO CALL WITNESSES, DETERMINATION ANNULLED AND RECORD EXPUNGED (THIRD DEPT))/EXPUNGEMENT (DISCIPLINARY HEARINGS (INMATES), PETITIONER WAS NEVER INFORMED OF HIS RIGHT TO CALL WITNESSES, DETERMINATION ANNULLED AND RECORD EXPUNGED (THIRD DEPT))

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