PETITIONER WAS MISINFORMED ABOUT WHETHER HE COULD REQUEST WITNESSES, AND, IF THEY REFUSED TO TESTIFY, WHETHER PETITIONER WAS ENTITLED TO A REFUSAL FORM OR EXPLANATION, NEW HEARING ORDERED (THIRD DEPT).

The Third Department determined petitioner was entitled to a new hearing because he was misinformed about whether he could request the presence of two witnesses who had refused to testify, and, if they again refused, whether petitioner was entitled to a refusal form or explanation:

The record reflects that, prior to the disciplinary hearing, petitioner asked his employee assistant to secure the testimony of three inmate witnesses — Franklin, Figueroa and Forrest. The assistance form indicates that although Forrest agreed to testify, the remaining two inmates refused. At the disciplinary hearing, the Hearing Officer advised petitioner that, because Franklin and Figueroa had been requested as witnesses prior to the start of the hearing, neither a witness refusal form nor an explanation for their refusal to testify was required. Specifically, the Hearing Officer explained that “when it comes to assistance . . . they only ask you yes or no, there are no witness forms required.” The Hearing Officer further explained, “If you ask for [an] additional witness that is not on this list and that person says no[,] I don’t want to testify[,] then a form would have to be done in that instance” (emphasis added). In response, petitioner indicated that he wished to call additional witnesses, but did not again request Franklin or Figueroa.

Respondent concedes that the Hearing Officer’s explanation incorrectly suggested that petitioner could request additional witnesses but not the two who had already refused. This error was significant as petitioner could still have requested Franklin and Figueroa and, if they again refused, a refusal form or explanation would have been required … . Matter of Getfield v Annucci, 2019 NY Slip Op 04523, Thrid Dept 6-6-19