ENTIRELY HEARSAY EVIDENCE SUPPORTED THE ADMINISTRATIVE AGENCY’S ABUSE FINDING 3RD DEPT.

The Third Department determined abuse findings were supported by substantial evidence, which was entirely hearsay. The court explained how hearsay is evaluated in the context of a ruling by an administrative agency, here the Justice Center for the Protection of People with Special Needs. Petitioner is an employee of the Office of People with Developmental Disabilities and was accused of abusing a service recipient. It was alleged petitioner held the service recipient down while another employee, Roberts, kicked her:

Petitioner contends that hearsay evidence cannot prevail over credible sworn testimony adduced at an administrative hearing. However, it is well established that “an administrative determination may be based entirely upon hearsay evidence provided such evidence is sufficiently relevant and probative or sufficiently reliable and is not otherwise seriously controverted” … . In addition, an administrative determination may be based entirely on such hearsay evidence even where there is contrary sworn testimony … .

Here, there is substantial evidence in the record to support the Justice Center’s final determination that petitioner engaged in conduct constituting category three abuse. In interviews conducted by an investigator, three eyewitnesses to the incident — two residents of the unit and Monica Sutton, a service provider — made consistent statements about the material facts of the incident, specifically, that petitioner restrained the service recipient on the floor while she was kicked by Roberts. Although the eyewitness statements received at the hearing were hearsay, there were sufficient indicia of their reliability. The accounts of the eyewitnesses, who were interviewed separately, are consistent with each other, and, as noted by the Justice Center, were “unwavering as to the core allegations.” Further, the statements from the residents were obtained in personal interviews conducted only three days after the incident, and, although Sutton’s statement was obtained approximately four months after the incident, it is corroborated by the written report of abuse that she made on the date of the incident. Notably, petitioner and Roberts each testified that Sutton witnessed the incident and, although each denied that Roberts kicked the service recipient, both admitted that the service recipient fell to the floor, where she grabbed Roberts by the legs, Roberts moved her legs in an effort to free herself, and petitioner touched or held the service recipient by the shoulder when she was on the floor; these admissions are consistent with the eyewitness reports. Accordingly, the hearsay evidence in the record was sufficiently reliable to provide substantial evidence to support the Justice Center’s determination. Matter of Watson v New York State Justice Ctr. for The Protection of People With Special Needs, 2017 NY Slip Op 05780, 3rd Dept 7-20-17

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