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WITNESS TESTIMONY TAKEN OUTSIDE THE INMATE’S PRESENCE REQUIRED ANNULMENT AND EXPUNGEMENT.

The Third Department determined the determination should be annulled and expunged because a witness’s testimony was taken outside the inmate’s presence without his permission:

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In disciplinary hearings, an inmate has a conditional right to call witnesses on his or her behalf and “[a]ny witness shall be allowed to testify at the hearing in the presence of the inmate unless the hearing officer determines that so doing will jeopardize institutional safety or correctional goals” … . The regulation promulgated by the Department of Corrections and Community Supervision requires that, prior to excluding a witness from testifying at the hearing, the Hearing Officer must “determine” that his or her presence will threaten institutional safety or correctional goals and inform the inmate of such reason … . Here, although petitioner conceded at the hearing that one inmate who was in the special housing unit could testify outside his presence, the Hearing Officer failed to set forth, either on the record or on the witness interview sheet, any reason for the other requested witness to testify outside petitioner’s presence. Furthermore, the record does not disclose, with regard to this witness, any reason that the presence of the inmate would jeopardize institutional safety or correctional goals … . As there was no adherence to the Department’s regulation, the determination must be annulled … . Furthermore, although petitioner was asked what questions he would pose to the requested witness and was permitted to hear the recorded testimony of that inmate, he repeatedly objected to the testimony of the inmate being taken outside his presence. As such, petitioner did not waive his right to receive a reason for the exclusion of that witness … . Matter of Kalwasinski v Venettozzi, 2017 NY Slip Op 05139, 3rd Dept 6-22-17

DISCIPLINARY HEARINGS (INMATES) (WITNESS TESTIMONY TAKEN OUTSIDE THE INMATE’S PRESENCE REQUIRED ANNULMENT AND EXPUNGEMENT)

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