The Third Department determined the inmate-petitioner’s disciplinary determination must be annulled because the inmate was effectively denied his right to call a witness:

… [T]he determination must be annulled because petitioner was denied his right to call a witness … . After petitioner requested that his cellmate at the time of the cell search be called to testify, the Hearing Officer sent two correction officers to retrieve him; the officers returned and merely reported that the prospective witness had refused to testify because “he didn’t want to come out.” One of the officers signed a witness refusal to testify form that provided no reason for the refusal and indicated that the prospective witness had refused to sign the form. As the Hearing Officer made no attempt to verify the witness’s refusal or ascertain his reasons for refusing to testify, despite petitioner’s repeated requests, petitioner’s right to call witnesses was violated … . Matter of Figueroa v Prack, 2015 NY Slip Op 06846, 3rd Dept 9-17-15

 

The Third Department determined petitioner posed no threat to institutional safety and, therefore, his confinement in a special housing unit constituted harsh and excessive punishment:

… [B]ecause neither the charges of which he is guilty nor the evidence presented at the hearing establishes that petitioner’s conduct was a threat to institutional safety and security, we find that the imposition of confinement in the special housing unit is harsh and excessive … . Matter of Kim v Annucci, 2015 NY Slip Op 04178, 3rd Dept 5-14-15

 

The Third Department annulled the disciplinary determination, finding that the hearing officer deprived the petitioner of his right to call witnesses by failing to investigate the witnesses’ purported refusal to testify:

Although petitioner requested that his employee assistant interview three inmate witnesses who worked in the library, the record reflects no effort by the employee assistant to interview the potential witnesses or to report the results of those efforts to petitioner. When this issue was raised at the hearing and petitioner inquired about those witnesses, the Hearing Officer adjourned the hearing in order for the employee assistant to ascertain the witnesses’ willingness to testify. Thereafter, the Hearing Officer denied the requested witnesses based upon the employee assistant’s report that all three witnesses refused to testify. No inquiry was made by the Hearing Officer as to the reasons for those witnesses’ refusal, no witness refusal forms were provided, and petitioner’s employee assistant was not called to testify regarding the circumstances as to why the witnesses refused to testify. Accordingly, the Hearing Officer deprived petitioner of his right to call witnesses and the matter must be expunged.. . Matter of Gross v Prack, 2015 NY Slip Op 03595, 3rd Dept 4-30-15

 

The Third Department determined the hearing officer was obligated to inquire into an inmate’s (Douglas’) refusal to testify at petitioner’s hearing because the reason for the refusal was obviously specious:

As a general rule, “no violation of the right to call witnesses will be found when there was no prior assent to testify, but the reason for the refusal appears in the record” … . Further inquiry is nonetheless required, however, where the reason given by the witness for refusing to testify is “clearly specious” … . Here, Douglas’ claim to have no relevant knowledge is belied by the record evidence, which demonstrates that he was aware of the interactions between petitioner and the officer and, moreover, suggests that he was involved in the conspiracy against the officer. Therefore, because the hearing evidence “cast[] doubt on the authenticity of the reasons given” for Douglas’ refusal to testify, the Hearing Officer erred in accepting his alleged lack of knowledge at face value and conducting no additional inquiry … . Inasmuch as the determination is otherwise supported by substantial evidence and the Hearing Officer articulated “a good-faith reason for the denial [of Douglas as a witness] . . ., this amounts to a regulatory violation requiring that the matter be remitted for a new hearing” … . Matter of Jackson v Prack, 2015 NY Slip Op 02527, 3rd Dept 3-26-15

 

The Third Department determined the failure to provide the inmate with meaningful assistance leading up to his hearing required the annulment of the determination.  The court further determination that the failure was of constitutional, not merely regulatory, dimensions requiring expungement.  The issues were discussed in unusual depth:

…[P]etitioner was not provided meaningful employee assistance and that he was prejudiced thereby. Departmental regulations require that an inmate who is confined pending a superintendent’s hearing is to be provided an assistant (see 7 NYCRR 251-4.1 [d]; 254.4). The assistant’s role is to, among other things, “interview witnesses and to report the results of his [or her] efforts to the inmate” (7 NYCRR 251-4.2). The record reflects that petitioner’s girlfriend and the other individual involved provided signed written statements to correction officials and State Police investigators implicating petitioner. Although petitioner requested that his assistant interview the two women to ascertain whether their statements were truthful and voluntary and provided his assistant with a list of questions to ask them, the record reveals that no interview took place and the Hearing Officer made no attempt to remedy the deficiency when petitioner raised the issue at the disciplinary hearing. Thus, the determination must be annulled.

Petitioner further asserts that the determination should be expunged, while respondent argues that the matter should be remitted for a new hearing because this was a regulatory, not constitutional, violation. Notably, the “right to assistance is a right of constitutional dimension” … and the failure to provide assistance is a violation of 7 NYCRR 251-4.2. In this regard, our precedent is not entirely consistent, nor have we clearly articulated the appropriate factors relevant to whether expungement, rather than remittal, is warranted when a petitioner has been denied meaningful employee assistance … . We have, however, held that constitutional violations related to a Hearing Officer’s failure to investigate a witness’s refusal to testify or the outright denial of the right to call a witness results in expungement …, while regulatory violations of such right do not … .

In the case before us, petitioner’s employee assistant took no steps whatsoever to interview the requested witnesses and ask the questions posed by petitioner, and this failure clearly prejudiced petitioner by impeding his ability to assert a defense to the charges. In our view, where, as here, the denial of meaningful employee assistance is absolute and without reasonable explanation, and the Hearing Officer does not attempt to remedy the deficiencies, such denial is comparable to those instances in which we have found a constitutional violation relative to the outright denial of a witness or the failure to ascertain the basis of a witness’s refusal to testify. Thus, under these circumstances, we find the denial of meaningful employee assistance to be a constitutional violation requiring expungement of all references to the matter from petitioner’s record. Matter of Rivera v Prack, 2014 NY Slip Op 08297, 3rd Dept 11-26-14