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THE RECORD DID NOT INDICATE THE HEARING OFFICER ASSESSED THE RELIABILITY OF CONFIDENTIAL INFORMATION; MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the misbehavior determination, found that record did not reflect that the hearing officer took the necessary steps to confirm the reliability of confidential information:

Although the Hearing Officer indicates that he relied upon and independently assessed confidential testimony, neither the hearing transcript nor the witness interview notice form reflects that any confidential testimony was taken during the hearing or that any confidential documents were reviewed. As to the relevant statement from the confidential informant, “[a] disciplinary determination may be based upon hearsay confidential information provided that it is sufficiently detailed and probative for the Hearing Officer to make an independent assessment of the informant’s reliability” … .

Here, the author of the misbehavior report simply testified with regard to the confidential informant that he had received information from the confidential informant in the past and deemed the current information accurate. Other than this general and conclusory testimony, no further details regarding the basis for the information or the results of the author’s investigation into the incident were provided. Moreover, evidence at the hearing contradicted the confidential information. Specifically, the inmate who petitioner allegedly sent to the visit room to pick up drugs had not, according to the visit room log, been to the visit room in over three weeks prior to the alleged incident. In view of the foregoing, neither the testimony or evidence at the hearing was sufficiently detailed or probative for the Hearing Officer to assess the reliability or credibility of the confidential informant. Matter of Brown v Annucci, 2020 NY Slip Op 02343, Third Dept 4-23-20

 

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PETITIONER REQUESTED AND WAS ENTITLED TO AN EMPLOYEE ASSISTANT TO HELP PREPARE A DEFENSE; DETERMINATION ANNULLED (SECOND DEPT).

The Second Department, annulling the determination, held that petitioner was denied due process because an employee assistant was not assigned to help him prepare his defense to the allegation he harassed prison staff:

The petitioner was wrongly denied an employee assistant to help him prepare his defense … . “A prisoner charged with violating a prison regulation which could result in the loss of good time’ credit is entitled to minimal due process protections” … . Prior to his disciplinary hearing, the petitioner was confined to administrative segregation and was, therefore, unable to prepare his defense … . Contrary to the respondents’ contention, 7 NYCRR 251-4.1(a) makes no distinction between a tier II and a tier III disciplinary hearing with regard to an inmate’s right to an employee assistant … .

The petitioner had a right to assistance in connection with his disciplinary proceeding pursuant to the Due Process Clause of the Fourteenth Amendment … and state regulations governing inmate disciplinary proceedings … . Accordingly, where the petitioner was not provided with assistance and the record reflects that he requested such assistance, the hearing officer’s determination must be annulled and the matter remitted for a new disciplinary hearing and a new determination thereafter … . Matter of Campbell v Lorde-Gray, 2020 NY Slip Op 02036, Second Dept 3-25-20

 

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EVIDENCE PETITIONER HAD MADE A THREAT TO A PRISON EMPLOYEE WAS INSUFFICIENT, DETERMINATION ANNULLED (SECOND DEPT). ​

The Second Department, annulling the determination, held that the evidence petitioner had made a threat was insufficient:

… [W]e agree with the petitioner that the determination that he was guilty of violating prison disciplinary rule 102.10 was not supported by substantial evidence. In reviewing a prison disciplinary determination, a court’s review of the factual findings is limited to ascertaining whether the determination is supported by substantial evidence (see CPLR 7803[4] …). Substantial evidence is “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … .

Prison disciplinary rule 102.10 provides that “[a]n inmate shall not, under any circumstances, make any threat, spoken, in writing, or by gesture” (7 NYCRR 270.2[B][3][i]). Here, the misbehavior report and the hearing testimony merely demonstrated that the petitioner “became loud and argumentative” when he was denied permission to hold a certain event in his capacity as the president of a certain prison inmate organization. The evidence merely showed that the petitioner was upset, and the statement by the prison’s Deputy Superintendent of Programs that she felt “intimidated,” and that the petitioner “stared at [her] and in a threatening manner left the area,” without more, was insufficient to establish that the petitioner actually made a threat against her. Matter of Mays v Early, 2019 NY Slip Op 09004, Second Dept 12-18-19

 

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PETITIONER-INMATE WAS DEPRIVED OF HIS FUNDAMENTAL RIGHT TO BE PRESENT DURING HIS DISCIPLINARY HEARING; ALTHOUGH PETITIONER WAS ARGUMENTATIVE, REMOVAL FROM THE HEARING WAS NOT WARRANTED; DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the disciplinary determination, held that petitioner-inmate was deprived of his right to be present during the hearing. Respondent removed petitioner from the hearing when petitioner became argumentative and asked that respondent recuse himself because of bias against the petitioner:

“An inmate has a fundamental right to be present at a Superintendent’s hearing ‘unless he or she refuses to attend, or is excluded for reasons of institutional safety or correctional goals'” … . The record reflects that, early in the hearing, petitioner asked respondent to recuse himself because petitioner had previously filed a complaint against him and perceived him to be biased. Respondent denied petitioner’s recusal request, stating that the complaint would not prevent him from providing petitioner with a fair hearing. Petitioner objected and, thereafter, twice interrupted respondent and complained that respondent had become “hostile” toward him. Respondent directed petitioner to stop interrupting him, warned him that continued interruptions would result in his removal from the hearing and sought petitioner’s acknowledgement that he understood that warning. Petitioner refused to acknowledge the warning, stating that it lacked any basis and that he was “only trying to participate in th[e] hearing.” Respondent then abruptly removed petitioner from the hearing, seemingly because petitioner refused to acknowledge the warning. Although several adjournments were taken that day to secure witnesses, petitioner was never brought back into the hearing. Our review of the record does not demonstrate that petitioner’s briefly argumentative behavior rose to the level of justifying his removal for the entire hearing or that his conduct jeopardized institutional safety and correctional goals … . Matter of Clark v Jordan, 2019 NY Slip Op 08757, Third Dept 12-5-19

 

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THE RELIABILITY OF THE CONFIDENTIAL INFORMANT WAS NOT ADEQUATELY CONSIDERED BY THE HEARING OFFICER, DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT).

The Third Department, annulling the determination and expunging the record, found that the hearing officer had not adequately considered the reliability of the confidential informant:

… [W]e find that the Hearing Officer’s inquiry was not thorough and specific enough to afford him an adequate opportunity to assess the confidential informant’s knowledge and reliability. After briefly reviewing the investigating officer’s professional experience, the Hearing Officer, in a cursory fashion, confirmed that the investigating officer had obtained confidential information and then asked whether that information was received under any kind of duress or the product of coercion, whether he thought the information was reliable and credible and whether there was any promise of secondary gain. Nothing further was solicited from the investigating officer, who provided only two or three-word responses to each question and failed to offer any description of the confidential source’s statements or further testimony to assist the Hearing Officer’s inquiry into the reliability of the confidential information … . In addition, the investigating officer failed to explain why he found the confidential informant reliable … . Indeed, “[t]he Hearing Officer may not base his or her conclusion solely upon the correction officer’s assessment of the confidential informant’s truthfulness” … . The record also does not reflect that the Hearing Officer attempted to personally interview the confidential informant in order to cure these deficiencies … . Matter of Barber v Annucci, 2019 NY Slip Op 07831, Third Dept 10-31-19

 

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INSUFFICIENT PROOF OF THE TESTING USED TO DETERMINE THE SUBSTANCES WERE CONTRABAND DRUGS, POSSESSION OF DRUGS CHARGE ANNULLED (THIRD DEPT).

The Third Department annulled the possession of drugs charge because the proof of the testing procedures used on the substances alleged to be drugs was insufficient:

When positive results of a test of suspected contraband drugs are used as evidence at a disciplinary hearing, 7 NYCRR 1010.5 (d) directs that certain documents, including “a statement of the scientific princip[les] and validity of the testing materials and procedures used,” be included in the record. This required document does not appear in the record, nor was it provided to petitioner despite his specific request and objections. Further, testimony from the testing officer offered no evidence of the procedures used. In view of the foregoing, that part of the determination finding petitioner guilty of possessing drugs is not supported by substantial evidence and must be annulled … . Matter of McFarlane v Annucci, 2019 NY Slip Op 07123, Third Dept 10-3-19

 

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PETITIONER’S REQUEST FOR TWO WITNESSES SHOULD NOT HAVE BEEN DENIED, NEW HEARING ORDERED (THIRD DEPT).

The Third Department, ordering new hearing, determined petitioner’s request to call witnesses should not have been denied:

… [T]he Hearing Officer improperly denied petitioner’s request to call as witnesses the two inmates who were housed on each side of his cell, as their potential testimony was highly relevant to petitioner’s defense that he was in his cell during the time of the underlying incident … . However, inasmuch as the Hearing Officer acted in good faith in denying the request on the ground of relevancy, petitioner’s regulatory right to call witnesses was violated and a new hearing on these charges, rather than expungement, is the appropriate remedy … . Matter of Parker v Annucci, 2019 NY Slip Op 06658, Third Dept 9-19-19

 

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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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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

 

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PETITIONER’S REQUEST FOR A VIDEOTAPE OF THE UNDERLYING INCIDENT WAS IMPROPERLY DENIED, EVEN THOUGH THE REQUEST WAS MADE FOR THE FIRST TIME DURING THE HEARING (THIRD DEPT).

The Third Department, ordering a new hearing, determined petitioner’s request for a videotape of the underlying incident was improperly denied by the hearing officer:

Although petitioner apparently did not request his assistant to obtain the videotape, he made such request during the course of the hearing. The Hearing Officer denied the request and informed petitioner that because he did not ask his assistant to obtain it, it was unpreserved. Based upon this omission, the Hearing Officer considered the videotape to be “unavailable.” However, there is nothing in the record to indicate that the videotape was, in fact, unavailable or that the Hearing Officer undertook any measures to ascertain if such videotape existed. In view of this, we conclude that petitioner’s request was improperly denied … . Matter of Davison v Annucci, 2019 NY Slip Op 01474, Third Dept 2-28-19

 

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