You are here: / Disciplinary Hearings (Inmates)

Behavior Did Not Warrant Removal from Hearing

In annulling the determination because the inmate’s behavior did not warrant his removal from the hearing, the Third Department wrote:

It is well settled that “[a]n inmate has a fundamental right to be present during a prison disciplinary hearing unless he or she is excluded for reasons of institutional safety or correctional goals” … . Here, petitioner objected to the continuation of the hearing after the prior Hearing Officer’s recusal.  It appears that the Hearing Officer became frustrated with petitioner’s unwillingness to move forward and warned him that he could be removed. Petitioner then ceased objecting, entered his pleas of not guilty to the charges and stated that he wished to put “a lot” on the record.  However, he then twice asked a question that the Hearing Officer apparently deemed irrelevant, and was abruptly removed from the hearing.  Under these circumstances, we do not find that petitioner’s conduct rose to the level of disruption that warranted excluding him from the remainder of the hearing… . Matter of German v Fischer, 515746, 3rd Dept 7-25-13

 

Criteria for Expungement Explained

In affirming Supreme Court’s annulment of the determination and grant of a new hearing because the recording of the proceeding was incomplete, the Third Department noted that the criteria for expungemet had not been met:

It is well settled that “[e]xpungement will be ordered only where there has been a showing that ‘(1) the challenged disciplinary determination is not supported by substantial evidence . . .; (2) there has been a violation of one of the inmate’s fundamental due process rights, as enunciated in Wolff v McDonnell (418 US 539 [1974]); or (3) other equitable considerations dictate expungement of the record rather than remittal for a new hearing'”… None of the foregoing situations is implicated here.  Matter of Barnes v Fischer, 515146, 3rd Dept 7-25-13 

 

Violation of Inmate’s Right to Call a Witness Required Expungement

The Third Department expunged a disciplinary determination because the inmate’s right to call a witness was violated and a rehearing was not possible:

Although  [the] witness  agreed  to testify, the  Hearing Officer denied  the  request  for this witness  on  the  basis that the conversation  took  place  after the  incident that is the  subject of the administrative segregation recommendation. Under the circumstances  presented,  we  conclude  that the  testimony  of this witness  was  not  irrelevant and thus the request  was  improperly denied….  As such, the Hearing Officer’s ruling constituted a violation of petitioner’s conditional, regulatory right to call witnesses …. Matter of DeBoue, 515486, 3rd Dept, 7-3-13

 

,

Denial of Inmate’s Request for Evidence and Failure to Include Confidential Testimony Required Annulment

In annulling the disciplinary determination, the Third Department noted the Hearing Officer’s failure to explain the denial of the inmate’s request for evidence and failure to include confidential testimony which was relied upon:

Inasmuch as the record before us fails to include any  explanation for the denial of the requested evidence, which may have prejudiced his defense, and is incomplete in that it does not include the confidential testimony taken and relied upon by the Hearing Officer in reaching the determination, we  are unable to undertake meaningful review… .  Matter of Gallagher, 514650, 3rd Dept 7-3-13

 

Failure to Transcribe Entire Hearing Required Annulment

In annulling the disciplinary determination, the Third Department explained that the apparent failure to transcribe the entire tape recording of the hearing made it impossible to know whether evidence favorable to the inmate’s defense was presented:

It appears from the transcript that only the first side of the audiotape was transcribed as the stenographer made a notation, “[s]econd side of tape not audible-runs on fast speed only,” and then abruptly ended the transcript.    We cannot ascertain what was on the second side of the tape or if it would have been beneficial to petitioner’s defense… ..Notably, the transcript does not reveal the disposition of petitioner’s request to have his wife and family members testify as witnesses at the hearing. In view of this, and given the potentially significant testimony that may be missing, the determination must be annulled… . Matter of Farrell, 514504, 3rd Dept 7-3-13

 

Inmate’s “Employee Assistant” Did Not Provide Meaningful Assistance in Preparation of Inmate’s Defense

In annulling the determination, the Third Department held that the inmate’s employee assistant did not provide meaningful assistance in the preparation of the inmate’s defense:

We agree with petitioner that meaningful employee assistance was not provided in accordance with 7 NYCRR 251-4.2 in order for him to prepare a defense. Although petitioner requested that 19 potential inmate witnesses be interviewed, the record reveals no effort by  the employee  assistant to interview the potential inmate  witnesses, who  were  not only identified but, according to the misbehavior report, were present during the alleged incident. The employee assistant should have interviewed the witnesses and reported back to petitioner with the results of those efforts (see 7 NYCRR 251-4.2); moreover, the Hearing Officer made no attempt to remedy the inadequacies when petitioner raised the issue at the administrative hearing… . Matter of Canty v Fischer, 515267, 3rd Dept, 6-13-13

 

Hearing Officer’s Refusal to Call Witness Required Expungement of Relevant Charges

The Third Department determined the relevant charges must be expunged because the hearing officer refused to call a witness, a violation of the inmate’s constitutional right:

…[T]he Hearing Officer erroneously refused to call a correction officer who witnessed petitioner’s behavior while being escorted to his cell. Inasmuch  as petitioner was deprived of his constitutional right to call a witness with regard to that incident, expungement of the related charges is required… .  Matter of Cahill v Prack, 515216, 3rd Dept, 5-16-13

 

Failure to Explain Why Inmate’s Roommates Allegedly Refused to Testify Required Annulment​

Because no explanation was provided to explain the requested witnesses’ (the inmate’s roommates’) alleged refusal to testify, the Third Department annulled the determination:

Petitioner requested the testimony of three witnesses who shared a room with him. The Hearing Officer stated that inmate refusal forms for all three had been signed by the employee assistant, but not by the inmates, and that no explanations were given for their refusal to testify. Because the record does not contain any reason for the witnesses’ refusal or indicate that the Hearing Officer attempted to verify their refusal, petitioner’s regulatory right to call witnesses has been violated (see 7 NYCRR 254.5 [a]; ….).  Matter of Sorrentino v Fischer, 515214, 3rd Dept, 5-16-13

 

 

Hearing Officer’s Refusal to Provide Requested Documents Required Annulment

The Third Department determined the failure to provide the inmate with evidence he requested required the annulment of the guilty determination:

Petitioner requested copies of  any “to/from” forms related to the incident and, despite the fact that one  of the correction officers testified to giving his account  of the events at issue in such  a  form, the Hearing Officer declined to provide petitioner a copy. Inasmuch as that document could have been relevant to formulating petitioner’s defense and effectuating his questioning of the officer, the determination must be annulled… .  Matter of Bermudez v Fischer, 514110, 3rd Dept, 5-16-13

 

Failure to Allow Inmate to Observe Search of Cell Required Annulment​

In annulling a disciplinary determination because petitioner was not allowed to observe the search of his cell, the Third Department wrote:

Department of Corrections and  Community Supervision Directive No. 4910 [V] [C] [1] provides, as relevant here, that “[i]f the inmate is removed  from quarters prior to [a] search, he or she shall be  placed outside the immediate area to be  searched, but allowed to observe the search. However, if, in the opinion of a supervisory security staff member, the inmate presents a danger to the safety and security of the facility, the inmate shall be  removed  from the area and  not allowed to observe the search.” At the disciplinary hearing, petitioner raised his objection that he  was  improperly removed  from the area of his cell despite his request to observe the search. Absent  any  indication that a  supervisory staff member determined  that petitioner posed  a  danger  to the security of the facility, we  cannot  conclude  that the Department  of Corrections and Community Supervision complied with Directive No. 4910.  Matter of Mingo v Chappius, 514655, 3rd Dept, 5-2-13

 

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy