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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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BECAUSE THE DRUG TESTING WAS FLAWED, THE SUBSTANCE PETITIONER WAS SMOKING WAS NOT IDENTIFIED AS MARIHUANA, AND THEREFORE WAS NOT PROVEN TO BE CONTRABAND; BOTH THE POSSESSION OF DRUGS DETERMINATION AND THE POSSESSION OF CONTRABAND DETERMINATION WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (THIRD DEPT).

The Third Department determined the possession of contraband determination was not supported by substantial evidence. Petitioner was seen smoking a cigarette. When he was asked what was in the cigarette, he answered “weed.” A test was performed which identified the substance as marihuana and petitioner was charged with possession of drugs and possession of contraband. The drug possession determination was dismissed when an inconsistency in the drug testing instructions was discovered. But the contraband possession determination remained and the punishment was unchanged:

Substantial evidence does not support the determination of guilt and, therefore, we annul. “[T]he prohibition of contraband hinges on whether or not the item is authorized” … . In light of the unreliable drug test and the absence of any hearing testimony identifying the substance at issue or attesting to petitioner’s alleged admission, the substance was not adequately identified … . Accordingly, “substantial evidence does not support the determination that the substance was unauthorized and, therefore, contraband” … . Matter of Razor v Venettozzi, 2021 NY Slip Op 06740, Third Dept 12-2-21

 

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THE RECORD DOES NOT DEMONSTRATE THE HEARING OFFICER MADE REASONABLE EFFORTS TO SECURE THE TESTIMONY OF AN EYEWITNESS TO THE FIGHT WHICH RESULTED IN THE MISBEHAVIOR REPORT CHARGING THE PETITIONER; NEW HEARING ORDERED (THIRD DEPT).

The Third Department, annulling the determination and ordering a new hearing, determined the hearing officer did not make reasonable efforts to have a witness to the fight, Johnson, testify at petitioner’s misbehavior hearing. Petitioner requested the witness’s testimony as part of his defense:

The record reflects that, although Johnson agreed to testify at the hearing, the Hearing Officer denied Johnson as a witness stating, without any elaboration, that Johnson was unavailable. Although the Hearing Officer indicated that he made four attempts to procure Johnson as a witness, the record does not indicate, other than on that particular day and time, when those attempts were made by the Hearing Officer or the nature thereof. Furthermore, the Hearing Officer did not complete a witness denial form setting forth any further detail regarding his attempts to contact Johnson or the reasons for Johnson’s unavailability. Under these circumstances, we find that the record does not sufficiently reflect whether reasonable and diligent efforts were made by the Hearing Officer to secure Johnson as a witness … . Because the Hearing Officer articulated a good-faith reason for denying the witness, we find that petitioner’s regulatory right to call a witness was violated and, therefore, remit the matter for a new hearing … . Matter of Douglas v Annucci, 2021 NY Slip Op 06020, Third Dept 11-4-21

 

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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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