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THE EXISTENCE OF A VIDEOTAPE OF THE ALLEGED MISBEHAVIOR-INCIDENT, REQUESTED BY THE PETITIONER, SHOULD HAVE BEEN INVESTIGATED BY THE HEARING OFFICER, NEW HEARING ORDERED (THIRD DEPT).

The Third Department, ordering a new hearing, determined the petitioner’s request for a videotape of the alleged misbehavior-incident should have been looked into by the hearing officer. The hearing officer asserted no videotape existed, but a document indicated a videotape had been preserved:

Petitioner requested the videotape from his employee assistant and at the hearing. Although the Hearing Officer informed petitioner that no videotape existed, the record contains a facility Video Preservation Form indicating that a videotape, taken in the area of the incident on the date in question, was preserved. Inasmuch as the record does not indicate that the Hearing Officer undertook any measures to ascertain whether the videotape existed, we find that petitioner’s request was improperly denied … . Matter of Espinal v Annucci, 2019 NY Slip Op 06670, Third Dept 9-19-19

 

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