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THE REASONS FOR THE DENIAL OF ATTORNEY’S FEES AFTER PETITIONER’S SUCCESSFUL FOIL REQUEST MERELY PARROTED THE STATUTORY LANGUAGE FOR THE LAW-ENFORCEMENT AND SAFETY EXEMPTIONS WITHOUT ANY SUPPORTING FACTS; THEREFORE ATTORNEY’S FEES SHOULD HAVE BEEN AWARDED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined petitioner was entitled to attorney’s fees associated with his ultimately successful FOIL request for the video of the incident which was the basis for the prison disciplinary proceedings. Attorney’s fees were denied on the ground that the respondent had a reasonable basis for denying the request for the video. However the respondent’s reasons for the denial merely parroted the relevant statutory language for the law-enforcement and safety exemptions, which was deemed insufficient:

In denying petitioner’s initial FOIL request and the subsequent administrative appeal, respondent merely quoted the language from the Public Officers Law. It gave no factual explanation or justification for its blanket denial to release the video footage. Although respondent provided an affirmation by its general counsel in this CPLR article 78 proceeding, the affirmation once again merely quoted the statutory language and failed to explain or demonstrate how the footage was compiled for any law enforcement purposes. In a conclusory and speculative fashion, the affirmation referenced some investigations and adjudications, but failed to provide any factual details or explanation of same. Moreover, the affirmation failed to detail how the release of the video footage would affect or interfere with said investigations and adjudications. “[R]espondent[], by merely parroting the statutory language and otherwise failing to provide any adequate sort of harm risked by disclosure, ha[s] failed to meet [its] burden of proving that disclosure of the records would interfere with a pending law enforcement investigation” … .

The affirmation was equally deficient with regard to the safety exemption (see Public Officers Law § 87 [2] [f]), in that it was neither particularized nor specific and failed to articulate an explanation as to how the release of the video footage could potentially endanger or impair the lives of correction officers or their families. Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 2022 NY Slip Op 07277, Third Dept 12-22-22

Practice Point: In order to deny attorney’s fees after a successful FOIL request, the respondent must demonstrate a reasonable basis for the initial denial of the request. Merely parroting the statutory language for the law-enforcement and safety exemptions is not sufficient. The reasons must be fact-based.

 

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THE RECORD DOES NOT REFLECT THE MEASURES TAKEN BY THE HEARING OFFICER TO DETERMINE THE BODY CAMERA FOOTAGE REQUESTED BY THE PETITIONER DID NOT EXIST; DETERMINATION ANNULLED AND NEW HEARING ORDERED (THIRD DEPT).

​The Third Department, annulling the misbehavior determination, held that petitioner-inmate’s request for body camera footage was improperly denied:

We … find merit to petitioner’s contention that his request for body camera footage was improperly denied. Upon petitioner’s request for such footage at the hearing, the Hearing Officer responded that the correction officer’s body camera was turned off and, therefore, such footage did not exist. The record does not reflect the measures taken or the basis upon which the Hearing Officer concluded that the footage did not exist … . As such, petitioner’s request for the body camera footage was improperly denied and, under these circumstances, the appropriate remedy is remittal for a new hearing … . Matter of Dorcinvil v Miller, 2022 NY Slip Op 06972, Third Dept 12-8-22

Practice Point: Here the petitioner-inmate requested body camera footage. The hearing officer denied the request, saying that the body camera had been turned off. Because the record did not reflect the steps taken by the hearing officer to defermine the footage didn’t exist, the determination was annulled and a new hearing was ordered.

 

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THE DISORDERLY CONDUCT AND VIOLENT CONDUCT MISBEHAVIOR DETERMINATIONS WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT). ​

The Second Department, reversing (modifying) the superintendent’s determination, held that the disorderly conduct and violent conduct determinations were not supported by substantial evidence:

… [T]he determination that the petitioner was guilty of violating rule 100.15, which provides that an incarcerated individual shall not engage in unauthorized sparring, wrestling, body-punching, or other forms of disorderly conduct, was not supported by substantial evidence. The misbehavior report does not state that the petitioner engaged in any particular act of disorderly conduct set forth in the rule, or any other similar act that could be defined as disorderly conduct within the meaning of the rule, which contemplates some form of physical contact by an inmate with another individual. Nor does the misbehavior report constitute substantial evidence to establish that the petitioner was guilty of violating rule 104.11, prohibiting violent conduct. The report does not indicate that the petitioner committed any particular violent act, merely stating that “[f]orce became necessary,” without indicating what the petitioner did to necessitate the use of such force. Furthermore, there is no evidence outside the report to support the determination that the petitioner was guilty of disorderly conduct or violent conduct … . Matter of White v LaManna, 2022 NY Slip Op 06010, Second Dept 10-26-22

Practice Point: Here in these prison disciplinary proceedings there was no proof of violence on the part of the inmate. Therefore the disorderly conduct and violent conduct determinations were not supported by substantial evidence. The allegation that “force became necessary,” referring to the actions of the guards, was not enough.

 

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THE VIDEO DID NOT SUPPORT THE CREATING-A-DISTURBANCE CHARGE, DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the misbehavior determination, found that the video evidence did support the charge:

… [S]ubstantial evidence was lacking to support the charge of creating a disturbance … . As relevant here, an incarcerated individual “shall not engage in conduct which disturbs the order of any part of the facility . . .[, which] includes . . . loud talking in a mess hall, program area or corridor” (7 NYCRR 270.2 [B] [5] [iv]). The misbehavior report stated that petitioner was talking to another incarcerated individual and that, after refusing to produce his identification card to a correction officer, “the other 38 [incarcerated individuals] began to take notice.” However, video of the incident does not reflect that petitioner’s conduct disturbed the order of the commissary bullpen area(see 7 NYCRR 270.2 [B] [5] [iv]), nor did it demonstrate that he was engaging in loud talk or other misconduct indicative of a disruption … . Matter of Ramos v Annucci, 2022 NY Slip Op 05255, Third Dept 9-22-22

Practice Point: Here the video of the incident did not support the charge that petitioner created a disturbance. The misbehavior determination was annulled.

 

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AN INMATE’S RELEASE ON PAROLE DOES NOT RENDER HIS APPEAL OF A DISCIPLINARY DETERMINATION MOOT (THIRD DEPT).

The Third Department determined that, although petitioner had been conditionally released to parole supervision, his challenge to a disciplinary determination had not been rendered moot:

… [D]uring the pendency of this appeal, petitioner was conditionally released to parole supervision. Accordingly, petitioner’s challenge to the Board’s prior decisions denying his release have been rendered moot … . However, petitioner’s challenge to the disciplinary determination has not been rendered moot by his conditional release … .. Accordingly, and as respondents concede that the claim was not time-barred based upon the application of the tolling provisions of certain executive orders that were issued by the Governor in response to the COVID-19 pandemic … , we remit the matter to Supreme Court for respondents to file an answer pursuant to CPLR 7804 (f) … . Matter of Ryhal v Annucci, 2022 NY Slip Op 05117, Third Dept 9-1-22

Practice Point: An inmate’s conditional release to parole does not render the inmate’s appeal of a disciplinary determination moot.

 

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PETITIONER WAS PROVIDED WITH THE WRONG MISBEHAVIOR REPORT THEREBY PREVENTING HIM FROM FORMULATING A DEFENSE AND QUESTIONS FOR THE WITNESSES; THE MISBEHAVIOR DETERMINATION WAS ANNULLED AND A NEW HEARING ORDERED (THIRD DEPT). ​

The Third Department, annulling the misbehavior determination and ordering a new hearing, determined the petitioner was not provided with the relevant “unusual behavior” report:

We agree with petitioner that he was denied relevant documentary evidence. The record reflects that petitioner received an unusual incident report from his employee assistant and, upon petitioner’s objection at the hearing that he did not receive the whole unusual incident report, the Hearing Officer provided petitioner with the to/from reports relevant to the incident at issue. At the conclusion of the hearing, however, and in response to the Hearing Officer’s statement of the evidence, petitioner objected that the unusual incident report that he had been given related to a March 2020 incident and not the one related to the June 2020 incident at issue. Based upon the objection raised by petitioner, as well as both the March 2020 and June 2020 unusual incident reports being included with the in camera exhibits, it appears that petitioner was, in fact, given an irrelevant unusual incident report. Inasmuch as the June 2020 unusual incident report is “relevant to formulating petitioner’s defense and effectuating his questioning” of witnesses, the determination must be annulled … . Matter of Saunders v Annucci .2022 NY Slip Op 04772, Third Dept 7-28-22

Practice Point: The failure to provide the petitioner with the correct misbehavior report prevented the petitioner from formulating a defense and relevant questions for the witnesses. The misbehavior determination was annulled and a new hearing ordered.

 

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PETITIONER-INMATE WAS DENIED DUE PROCEES WHEN HE WAS NOT ALLOWED TO VIEW A VIDEO OF THE INCIDENT WHICH RESULTED IN THE MISBEHAVIOR CHARGE; NEW HEARING ORDERED (THIRD DEPT).

The Third Department, annulling the petitioner-inmate’s misbehavior determination, held that the petitioner was denied due process by not being given the opportunity to see the video of the incident:

“[A]n [incarcerated individual] ‘should be allowed to call witnesses and present documentary evidence in his [or her] defense when permitting him [or her] to do so will not be unduly hazardous to institutional safety or correctional goals'” … . The videotaped incident occurred while petitioner was incarcerated at a different facility. The Hearing Officer informed petitioner that, due to the format of the video, it could not be played in the hearing room and could only be played on equipment located in a secure area of the facility from which petitioner was barred entry. The Hearing Officer stated that he had viewed the video in the secure area, and he described what he believed the video depicted. Petitioner objected, arguing that he was being prevented from providing exculpatory testimony as to what occurred in the video. The Hearing Officer denied the objection, stating that ‘the video speaks for itself,’ and the record reflects that he relied, in part, on the video in reaching the determination of guilt. Contrary to respondent’s contention, the explanation that the only video equipment capable of playing the video was in a secure area, without any apparent attempt to either move the equipment or find other equipment capable of playing the video for petitioner, did not articulate institutional safety or correctional goals sufficient to justify denying petitioner’s right to reply to evidence against him … .. Similarly, the fact that petitioner may have seen the video at his former facility during a prior hearing on these charges before a different Hearing Officer, a hearing that resulted in a determination that was administratively reversed, does not excuse the denial of petitioner’s right to view the video during the new hearing and offer exculpatory testimony as to its contents … .

As to the remedy, we conclude that a new hearing, not expungement, is appropriate. Matter of Proctor v Annucci, 2022 NY Slip Op 03298, Third Dept 5-18-22

Practice Point: Prison inmates charged with misbehavior have due process rights. Here the petitioner-inmate was entitled to see the video which allegedly depicted the charged misbehavior. The determination was annulled and a new hearing ordered.

 

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DESPITE THE APPARENT FAILURE TO PRESERVE A VIDEO OF A MEETING DURING WHICH PETITIONER ALLEGEDLY PLANNED A DEMONSTRATION AT THE PRISON, THE DETERMINATION FINDING PETITIONER GUILTY OF PLANNING THE DEMONSTRATION WAS CONFIRMED; THE DISSENT ARGUED PETITIONER WAS DEPRIVED OF DUE PROCESS BY THE FAILURE TO TURN OVER THE VIDEO, WHICH HAD BEEN REVIEWED BY THE OFFICER WHO PREPARED THE MISBEHAVIOR REPORT (THIRD DEPT).

The Third Department confirmed the determination finding petitioner-inmate guilty of urging others to participate in a demonstration at the prison. There was a video of the meeting where the demonstration was allegedly planned. An officer who witnessed the meeting and testified about it apparently viewed the video. Petitioner made timely requests for the video, but it was never provided. The dissent argued the failure to retain and provide the video of the alleged meeting required that the determination be annulled:

From the dissent:

The sergeant and the correction officer have described two distinctly different meetings, one involving 12 people, the other 30 to 40 … . This discrepancy heightens the relevance of the … video, as does the fact that the sergeant viewed the video and the Hearing Officer was uncertain whether that viewing occurred before or after the undefined retention period expired. Complicating matters, the Hearing Officer noted the three-week delay between the … meeting and issuance and service of the misbehavior report on petitioner.

… In a situation such as this, where there is an extended delay in issuing a misbehavior report and the author of that report has in fact reviewed a video, it is incumbent upon the correctional facility to preserve that evidence … . The failure to do so here compromised petitioner’s due process right to a fair evidentiary hearing … . That is particularly so in view of the sergeant’s affirmative testimony as to what ostensibly happened in the E-yard on May 29, 2020. It is further evident that the Hearing Officer should have, but failed to, inquire further as to the existence of the video or the circumstances of its deletion … Matter of Headley v Annucci, 2022 NY Slip Op 03166, Third Dept 5-12-22

Practice Point: Inmates subjected to disciplinary actions by prison authorities have due process rights. Here the dissent argued that the failure to preserve and provide a video of the meeting at which petitioner-inmate allegedly planned a prison demonstration deprived him of his due process rights. The dissenter would have annulled the determination on that ground.

 

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THE EVIDENCE DID NOT SUPPORT THE DETERMINATION PETITIONER-INMATE WAS GUILTY OF “CREATING A DISTURBANCE” (THIRD DEPT).

The Third Department, annulling the disciplinary determination, held the evidence did not demonstrate petitioner-inmate was guilty of “creating a disturbance:”

Pursuant to the relevant regulations, an incarcerated individual “shall not engage in conduct which disturbs the order of any part of the facility” (7 NYCRR 270.2 [B] [5] [iv]). Such disruptive conduct includes, as relevant here, “loud talking in a mess hall, program area or corridor” (7 NYCRR 270.0 [B] [5] [iv]). The misbehavior report, which was the sole evidence relied upon by the Hearing Officer, provided, in relevant part, that petitioner was observed “arguing” with another incarcerated individual “in the dorm hallway . . ., which drew the attention of the [incarcerated individuals] nearby.” The misbehavior report does not reflect that petitioner was screaming … or otherwise speaking in a loud or boisterous manner … , nor does it establish that petitioner’s behavior triggered an affirmative response on the part of the incarcerated individuals observing the alleged argument … . Similarly, petitioner was found not guilty of fighting, and there were no other established disciplinary infractions that would give rise to a reasonable inference that his conduct was disruptive … . In short, as the misbehavior report fails to identify the manner in which petitioner’s conduct disturbed the order of the facility, we cannot say that respondent’s determination is supported by substantial evidence … . Matter of Hogan v Thompson, 2022 NY Slip Op 02470, Third Dept 4-14-22

 

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ALTHOUGH THE DETERMINATION THE INMATE CURSED AT AND THREATENED A CORRECTION OFFICER WAS CONFIRMED, THE CONCURRENCE NOTED THE OFFICER WAS NOT WEARING A BODY CAMERA, DESPITE THE PILOT PROGRAM IMPLEMENTED IN 2018 (THIRD DEPT).

The Third Department confirmed the finding that petitioner cursed at and threatened a correction officer. The concurrence noted that a body camera would have would provided crucial evidence in a case like this:

Although we can accept the explanation here that the correction officer had not been assigned a body camera on the day of the incident, the perplexing question that remains is why not? A recording of actual events would certainly assist in resolving credibility disputes such as the one at hand, either exonerating or condemning the actions of the facility’s employees … . We are mindful that the Department of Corrections and Community Supervision has taken steps since 2018 to implement a body camera pilot program and that legislation has been introduced in the State Assembly and Senate to amend the Correction Law to require respondent to establish a “[b]ody camera for correction officers pilot program” at maximum security facilities … . As is evident from this case, it appears that a comprehensive body camera program has yet to be established. Matter of Pine v Annucci, 2021 NY Slip Op 06903, Third Dept 12-9-21

 

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