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THE NOTICE OF APPEAL WAS TIMELY SERVED BUT WAS NOT TIMELY FILED WITH THE CLERK OF THE COURT; THE 3RD DEPARTMENT DISMISSED THE APPEAL; THE APPELLATE COURT HAS THE DISCRETION TO ALLOW A LATE FILING; MATTER REMITTED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined that, although the pro se inmate-petitioner did not timely file the notice of appeal, the notice was timely served and the Third Department could have exercised discretion to allow a late filing. The matter was remitted because the Third Department’s decision was silent about the reasons for dismissing the appeal:

… [P]etitioner argues that the Appellate Division should have applied a pro se inmate “mailbox rule” to deem the notice of appeal timely filed upon delivery to prison authorities for forwarding to the appropriate court.

CPLR 5515 (1) provides that an appeal is taken when, in addition to being duly served, the notice of appeal is “fil[ed] . . . in the office where the judgment or order of the court of original instance is entered.” The CPLR further clarifies that “papers required to be filed shall be filed with the clerk of the court in which the action is triable” (CPLR 2102 [a]). Thus, by its express terms, the CPLR indicates that filing occurs when the clerk’s office receives the notice of appeal. Indeed, “filing” has long been understood to occur only upon actual receipt by the appropriate court clerk … . A “mailbox rule” for filing would also contravene the clear distinctions between filing and service drawn by the legislature inasmuch as the CPLR directs that, unlike filing, “service by mail shall be complete upon mailing” (CPLR 2103 [b] [2]). .. * * *

… [T]he legislature has given courts the authority to excuse untimely filing under certain circumstances. CPLR 5520 provides that, “[i]f an appellant either serves or files a timely notice of appeal . . . , but neglects through mistake or excusable neglect to do another required act within the time limited, the court from or to which the appeal is taken . . . may grant an extension of time for curing the omission” (CPLR 5520 [a]). Matter of Miller v Annucci, 2021 NY Slip Op 04954, CtApp 9-9-21

 

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BEFORE PETITIONER INMATE’S ARTICLE 78 PETITION WAS CONSIDERED RESPONDENT VOLUNTARILY REVERSED THE GUILTY FINDINGS ON THE PRISON DISCIPLINARY VIOLATIONS; PETITIONER WAS NOT ENTITLED TO ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT UNDER THE “CATALYST THEORY” (THIRD DEPT).

The Third Department determined petitioner inmate was not entitled to attorney’s fees as a prevailing party pursuant to the Equal Access to Justice Act [EAJA] (CPLR Article 86). Petitioner contested guilty findings on several prison disciplinary violations and brought an Article 78 proceeding. Before the Article 78 petition was considered the respondent reversed the disposition and expunged it from petitioner’s prison record. Petitioner then sought attorney’s fees as the prevailing party:

Petitioner contends that he is entitled to counsel fees because he prevailed in the litigation under the “catalyst theory.” [The catalyst theory posits that a petitioner is a prevailing party if the desired result is achieved because the proceeding brought about the voluntary change in the respondent’s conduct … .] * * *

Although this Court has not decided whether it will adopt the catalyst theory in EAJA cases, when this Court has been asked to adopt the catalyst theory in other counsel fee award cases, it has declined to do so as the “United States Supreme Court has clearly held that a voluntary resolution of a matter lacks the necessary judicial imprimatur to warrant an award of [counsel] fees” … . … [T]he Court of Appeals specifically agreed … . The same reasoning applies here. The change in the legal relationship was accomplished prior to answering the petition, was based on the voluntary actions of the Department of Corrections and Community Supervision, and was “not enforced by a consent decree or judgment of Supreme Court” … . Matter of Clarke v Annucci, 2021 NY Slip Op 00473, Third Dept 1-28-21

 

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MISBEHAVIOR CHARGES BASED UPON ITEMS ALLEGEDLY FOUND DURING A SEARCH OF PETITIONER’S CELL CONDUCTED WHEN THE PETITIONER WAS NOT PRESENT ANNULLED AND EXPUNGED (THIRD DEPT).

The Third Department annulled the findings of guilt on possessing a weapon and possessing an altered item because defendant was not present during all of the search of his cell before the weapon was discovered:

… [W]ith respect to the charges of possessing a weapon and possessing an altered item, the Attorney General concedes, and we agree, that the findings of guilt as to those charges should be annulled and all references thereto expunged from petitioner’s institutional record on the ground that petitioner was not present during all of the search of the cell before the weapon was discovered. Matter of Sylvester v Annucci, 2020 NY Slip Op 05109, Third Dept 9-24-20

 

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SUBSTANTIAL EVIDENCE SUPPORTED THE MISBEHAVIOR REPORT ALLEGING THE INMATE WAS ISSUED A RAZOR FOR SHAVING BUT THE ROUTINE “RAZOR CHECK” INDICATED THE RAZOR WAS MISSING; THE INMATE CLAIMED HE WAS NEVER ISSUED A REPLACEMENT AND UNSUCCESSFULLY SOUGHT TO PRESENT WITNESSES TO DEMONSTRATE THE RAZOR CHECK SYSTEM IS NOT RELIABLE; THERE WAS AN EXTENSIVE DISSENT (CT APP).

The Court of Appeals, over an extensive dissent, determined the hearing officer’s finding the inmate was guilty of the infraction charged in the misbehavior report was supported by substantial evidence. The dissent fleshes out the facts. The misbehavior report alleged the inmate had been issued a razor (for shaving) but no razor was found in a routine “razor check”–raising the possibility that the missing razor could be used to make a weapon. The inmate claimed he had not been issued a replacement razor and sought to present  witnesses to demonstrate the razor security system was unreliable (the witness-request was denied):

Substantial evidence supported the administrative determination because there was “a rational basis for the conclusion adopted by the agency” … . The record proof, including the inmate misbehavior report, “razor check records,”… and contraband receipt, was adequate to permit a reasonable person to conclude that petitioner was guilty of the charged infraction. In reaching the opposite conclusion, the dissent exceeds the judicial function by impermissibly crediting testimony rejected by the agency and re-weighing the record evidence in petitioner’s favor.

The hearing officer did not violate petitioner’s constitutional right to call witnesses, as “implemented by the prison regulations in this State” … . The hearing officer explained that the requested witnesses’ testimony was not material and, in the circumstances presented, that conclusion was justified. Petitioner’s other arguments are unpersuasive … . Matter of Zielinski v Venettozzi, 2020 NY Slip Op 04905, CtApp 9-15-20

 

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A CORRECTION LAW PROVISION INSULATED THE PETITIONER-INMATE FROM DISCIPLINE FOR SENDING A LETTER REQUESTING AN INSTITUTIONAL POLICY CHANGE REGARDING VENDORS WHICH SUPPLY PACKAGES TO PRISONS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner-inmate should not have been disciplined for a letter to vendors which supply packages to prisons. Petitioner was opposed to a pilot program awarding eight vendors the exclusive right to supply packages to prisons. Petitioner sent a letter urging excluded vendors to “fight back” and was disciplined under a provision of the Institutional Rules of Conduct which prohibits inmates from soliciting goods or services from businesses. The Second Department held that the letter was subject a Correction Law provision which prohibits discipline for requests for policy changes:

… [B]ecause the letter did not solicit goods or services from any business, the record does not support the hearing officer’s determination that rule 103.20 (7 NYCRR 270.2[B][4][ii]) was violated. Moreover, even if construed to violate the rule, the petitioner’s conduct was insulated from discipline by Correction Law § 138, which provides that “[i]nmates shall not be disciplined for making written . . . requests involving a change of institutional conditions, policies, rules, regulations, or laws affecting an institution” (Correction Law § 138[4]). The petitioner’s December 15, 2017, letter was a “request[ ] involving a change of institutional . . . policies” (id. ) in that he invited certain organizations adversely affected by the DOCCS’s [NYS Department of Corrections and Community Supervision’s] new policy to undertake action in opposition to that new policy. The respondents thus disciplined the petitioner in contravention of Correction Law § 138(4). Matter of Miller v Annucci, 2020 NY Slip Op 04167, Second Dept 7-22-20

 

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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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