You are here: / Disciplinary Hearings (Inmates)
, ,

HERE THE FACILITY REVIEW OFFICER VIEWED THE VIDEO EVIDENCE AND EXPRESSED THE CONCLUSION PETITIONER HAD VIOLATED PRISON RULES BEFORE THE DISCIPLINARY HEARING; THAT SAME OFFICER DECIDED PETITIONER’S ADMINISTRATIVE APPEAL; THAT SCENARIO VIOLATED DUE PROCESS; THE MISBEHAVIOR DETERMINATION WAS ANNULLED (THIRD DEPT).

The Third Department, annulling the determination petitioner had violated prison rules, determined the fact that the facility review officer reviewed petitioner’s misbehavior report and decided the administrative appeal violated due process:

Petitioner contends … he was denied due process because the facility review officer that reviewed his misbehavior report … also decided petitioner’s administrative appeal of the guilty determination as the facility superintendent’s designee … . … Generally, the facility review officer is charged with reviewing each misbehavior report issued and, considering the seriousness of the alleged violations in the report, determining the appropriate tier level classification … . Here, petitioner, both during the hearing and in his administrative appeal, challenged certain actions taken by the facility review officer concerning his review of the misbehavior report. … [I]n reviewing the misbehavior report, the facility review officer viewed the video that was to be presented as evidence of guilt at the hearing. Based upon his viewing of the video, the facility review officer informed petitioner in a memorandum prepared prior to the disciplinary hearing that the video shows “you and your visitor acting in an unacceptable manner in the visit room.” The review officer further states “that the video does not show your penis being exposed as stated in the [misbehavior] report that’s why I downgraded the tiering, . . . it does clearly show your visitor with her right hand between your legs in the groin area and her hand moving in a stroking motion.” In light of the fact that certain challenges to the review officer’s actions were raised by petitioner in his administrative appeal, as well as the facility review officer’s expressed predeterminations regarding petitioner’s guilt, we conclude that his serving as the superintendent’s designee to decide the appeal denied petitioner a fair and impartial administrative appeal. Matter of Williams v Panzarella, 2024 NY Slip Op 02118, Third Dept 4-18-24

Practice Point: In the context of prison disciplinary proceedings, the prisoner’s right to due process of law is violated when the same officer who viewed the evidence and indicated the prisoner was guilty prior to the hearing also decided the prisoner’s administrative appeal.

 

,

THE HEARSAY MISBEHAVIOR REPORT, UNSUPPORTED BY ANY INVESTIGATION, DID NOT CONSTITUTE SUBSTANTIAL EVIDENCE OF PETITIONER’S GUILT; DETERMINATION ANNULLED (THIRD DEPT). ​

The Third Department, annulling the determination, held that the hearsay misbehavior report which was not substantiated by an investigation was insufficient to support guilty finding:

“[H]earsay misbehavior reports can constitute substantial evidence to support a determination of guilt so long as the evidence has sufficient relevance and probative value” … . Here, the correction officer who authored the misbehavior report testified at the hearing that no investigation into the allegation was conducted, explaining that the matter was reported toward the end of his shift and, therefore, there was no time for any investigation. Although the correction officer testified that the incarcerated individual who accused petitioner of making threats was “pretty convincing,” he offered no further basis or details as to why he found the report of the threat to be credible. Further, the incarcerated individual who made the allegations against petitioner, and who is identified in the misbehavior report, refused to testify at the hearing. As such, the only evidence to support the charge is the hearsay misbehavior report reciting nothing more than an unverified and uninvestigated accusation that petitioner threatened a fellow incarcerated individual. Under these circumstances, the misbehavior report does not constitute substantial evidence of petitioner’s guilt, and the determination must be annulled … . Matter of Alvarado v Annucci, 2024 NY Slip Op 01227, Third Dept 3-7-24

Practice Point: In inmate disciplinary hearings, a hearsay misbehavior report unsupported by any investigation does not constitute substantial evidence of guilt and will not support a guilty determination.

 

,

THE DENIAL OF PETITIONER-INMATE’S RIGHT TO CALL WITNESSES REQUIRED ANNULMENT OF ONE MISBEHAVIOR DETERMINATION AND EXPUNGEMENT OF ANOTHER (THIRD DEPT).

The Third Department annulled one misbehavior determination and expunged another because petitioner was denied his right to call witnesses:

… [The Hearing Officer improperly denied petitioner’s request to call as a witness one of the correction officers who was present during the search of petitioner’s cell and endorsed the second misbehavior report (see 7 NYCRR 254.5). Given the passage of time, respondent does not seek a rehearing and requests that the determination in relation to the second misbehavior report be annulled.

… [T]he determination in relation to the first misbehavior report must also be annulled on the ground that petitioner was improperly denied his right to call a witness. The record reflects that petitioner, who denied the assault and claimed he was being set up, requested to call as a witness the alleged victim of the assault. Although there was a discussion at the hearing that the alleged victim would have to agree to testify, there is no indication that the alleged victim refused to testify or that the Hearing Officer made any effort to procure him as a witness. “[W]here the record does not reflect any reason for the witness’ refusal to testify, or that any inquiry was made of him [or her] as to why he [or she] refused or that the [H]earing [O]fficer communicated with the witness to verify his [or her] refusal to testify, there has been a denial of the [incarcerated individual’s] right to call witnesses as provided in the regulations” (… see 7 NYCRR 254.5). As we view the unexplained outright denial of a witness commensurate to the denial of petitioner’s constitutional right to call witnesses, expungement rather than remittal for a new hearing is the appropriate remedy … . Matter of Diaz v Annucci, 2023 NY Slip Op 06187, Third Dept 11-30-23

Practice Point: In prison misbehavior proceedings the erroneous or unexplained denial of an inmate’s right to call witnesses is reversible error.

 

,

THE SUBSTANCE FOUND ON PETITIONER-INMATE’S PERSON WAS NOT TESTED OR OTHERWISE IDENTIFIED AS A DRUG; THE DRUG POSSESSION AND DISTRIBUTION, AS WELL AS THE SMUGGLING, DETERMINATIONS ANNULLED (THIRD DEPT).

The Third Department, held the drug possession and distribution, as well as the smuggling, determinations should be annulled. A drug sniffing dog alerted to a substance on petitioner-inmate’s person but no testing or other identification of the substance was done:

At the prison disciplinary hearing, it was established that the suspected substance was not subjected to chemical testing, nor was there any evidence indicating that facility pharmacy or nursing staff inspected or visually identified the substance ,,, . Rather, the substance was visually identified as synthetic marihuana by the OSI K-9 officer. However, the regulation does not authorize an OSI officer to identify suspected substances as drugs. Similarly, testimony regarding the K-9 alerting to petitioner’s groin area did not suffice to comply with the regulation. While there was testimony that petitioner admitted that he possessed K2, this would, at most, establish a charge of possession of contraband, but not drug possession. Unlike a drug-related disciplinary charge, which requires compliance with the aforementioned identification procedures … , the prohibition on contraband merely depends on whether or not an item is authorized … . In light of the lack of compliance with regulatory procedures, the identity of the substance was not properly established …

As for the remaining charge of smuggling, this charge only requires that “any item” be smuggled in or out of the facility or from one area to another … , and does not require proof that the item was a drug or contraband. However, in finding petitioner guilty of this charge, the Hearing Officer expressly based his finding on the OSI K-9 officer’s conclusion that the substance was synthetic marihuana, and therefore must have been smuggled in from outside the facility. As noted above, this conclusion was flawed. Given that, and because there was no proof at the hearing that the substance in question was moved from one area to another, the finding as to this charge is also unsupported by substantial evidence and must be annulled. Matter of Then v Annucci, 2023 NY Slip Op 01037, Third Dept 2-23-23

Practice Point: The substance must be tested or otherwise identified by a professional as a drug before a drug possession or distribution determination against an inmate will be upheld.

, , ,

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.

 

,

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.

 

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.

 

,

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.

 

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.

 

,

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.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2024 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy