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INMATE’S REQUESTS FOR UNIDENTIFIED WITNESSES IMPROPERLY DENIED.

The Third Department determined some of petitioner’s requests for testimony from unidentified witnesses to the underlying incident were improperly denied. The hearing officer should have checked logs before denying the request for an unidentified corrections officer alleged to have been present. And petitioner’s request for testimony from unidentified inmates who allegedly were delayed by the incident should not have been denied simply because of the number of potential inmate witnesses (50):

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Petitioner requested the testimony of a correction officer that he believed was present with the sergeant during the incident. Petitioner did not know the name of the witness, but gave the Hearing Officer a description and requested that the Hearing Officer review the logbooks to identify the witness. The Hearing Officer denied the witness, based upon the testimony of the sergeant that he was alone during the incident with petitioner. Inasmuch as the record does not reflect that the Hearing Officer reviewed the logbooks or made any other effort to identify the witness, we cannot say that a diligent effort was made to locate the witness … . …

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Petitioner also requested the testimony of 50 unidentified inmates who, according to the misbehavior report and hearing testimony, were delayed in returning to their cells from breakfast because of the incident involving petitioner. A correction officer testified that, because of the incident, she was unable to release those inmates to return to petitioner’s cellblock for approximately five to seven minutes. The Hearing Officer denied petitioner’s request, stating that he was not going to call 50 witnesses. We disagree with respondents’ contention that the requested testimony was irrelevant because the inmates did not witness the incident involving petitioner, inasmuch as their testimony was relevant to the charge of interfering with staff. In our view, petitioner was improperly denied the right to call a reasonable number of these witnesses, who were all housed on the same cellblock and should have been easily identifiable. Although calling all 50 witnesses would be impractical and unnecessary, the requested testimony was not irrelevant or redundant, and the Hearing Officer’s blanket denial of these witnesses was therefore improper … . Matter of Harriott v Koenigsmann, 2017 NY Slip Op 03240, 3rd Dept 4-27-1

 

DISCIPLINARY HEARINGS (INMATES) (INMATE’S REQUESTS FOR UNIDENTIFIED WITNESSES IMPROPERLY DENIED)

DETERMINATION THAT PETITIONER USED MARIJUANA WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED, RECORD EXPUNGED.

The Second Department determined the finding petitioner had used marijuana was not supported by the evidence. The hearing officer stipulated to the petitioner’s claim that the medication he was taking produced false positive results for marijuana. The corrections officer’s testimony that he smelled marijuana near where the petitioner was standing was not enough. Petitioner was standing outside with others at the time:

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Since the hearing officer stipulated that the petitioner’s medication produces false positives for cannabinoids in urinalysis tests, and since no evidence was submitted to contradict the petitioner’s evidence, the positive urinalysis tests results were of little probative value in establishing that the petitioner used cannabinoids. While the correction officer’s observations were sufficient to raise suspicion that the petitioner had violated the prison disciplinary rule, they were not adequate to reasonably support the conclusion that the petitioner had, in fact, violated the rule, especially since the correction officer’s detection of the marijuana odor was made outdoors where there were other inmates in the immediate vicinity of the petitioner. Accordingly, we find that the hearing officer’s determination was not supported by substantial evidence. Matter of Jackson v Annucci, 2017 NY Slip Op 03178, 2nd Dept 4-26-17

DISCIPLINARY HEARINGS (INMATES) (DETERMINATION THAT PETITIONER USED MARIJUANA WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED, RECORD EXPUNGED)/MARIJUANA (DISCIPLINARY HEARINGS, INMATES, DETERMINATION THAT PETITIONER USED MARIJUANA WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED, RECORD EXPUNGED)

HEARING OFFICER’S FAILURE TO INQUIRE INTO A WITNESS’S REFUSAL TO TESTIFY REQUIRED ANNULMENT.

The Third Department annulled the determination because the hearing officer did not inquire into the reason for an inmate witness’s refusal to testify:

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… [P]etitioner] asserts that the Hearing Officer failed to make any inquiry into the reason that an inmate, who had initially agreed to testify, later changed his mind. The record discloses that this inmate told petitioner’s assistant that he would testify at the hearing, but subsequently refused. Although the inmate did not execute a witness refusal form, he signed a written statement indicating that he did not want to testify out of fear of retaliation. At the hearing, petitioner expressed his desire to have this inmate testify because he was housed in a location where he may have witnessed the incidents in question, and he requested that the Hearing Officer ascertain whether the inmate’s refusal was legitimate. The Hearing Officer did not conduct any further inquiry, and ultimately denied the inmate as a witness.

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The Court of Appeals recently held in Matter of Cortorreal v Annucci (28 NY3d 54, 60 [2016]) that where “a refusing inmate witness claims that he or she was coerced into refusing to testify at the hearing . . ., the hearing officer has an obligation to undertake a meaningful inquiry into the allegation.” Here, as in Matter of Cortorreal v Annucci (supra), the Hearing Officer did not make any inquiry of the inmate regarding his fear of retaliation, which was clearly a form of coercion. Rather, the Hearing Officer proceeded to deny petitioner’s request for this witness as redundant ,,, . In the circumstances presented, the subsequent denial does not excuse the Hearing Officer’s failure to make a further inquiry into the inmate’s refusal. Matter of Kalwasinski v Venettozzi, 2017 NY Slip Op 03092, 3rd Dept 4-20-17

 

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER’S FAILURE TO INQUIRE INTO A WITNESS’S REFUSAL TO TESTIFY REQUIRED ANNULMENT)

FAILURE TO PRODUCE A COPY OF THE MAIL WATCH AUTHORIZATION REQUIRED THAT THE DETERMINATION BE ANNULLED AND EXPUNGED.

The Third Department determined the respondent did not demonstrate the mail watch which led to the charges against petitioner was properly authorized. The related evidence could not be the basis for the determination, which was annulled and expunged:

… [P]etitioner requested a copy of the mail watch authorization four times during the course of the hearing, but it was never produced and is not part of the record. Although the senior investigator testified that the mail watch was authorized by the Superintendent of the facility, the reason for its issuance and the specific facts underlying it were never disclosed and are not apparent from the record. Under these circumstances, we find that authorization for the mail watch was not established in accordance with the requirements of 7 NYCRR 720.3 (e) (1) … . Inasmuch as correspondence obtained through the unlawful mail watch was instrumental in finding petitioner guilty of solicitation and violating facility correspondence procedures, that part of the determination must ,,, be annulled … . Matter of Wilson v Commissioner of N.Y. State Dept. of Corr. & Community Supervision, 2017 NY Slip Op 01921, 3rd Dept 3-16-17

DISCIPLINARY HEARINGS (INMATES) (FAILURE TO PRODUCE A COPY OF THE MAIL WATCH AUTHORIZATION REQUIRED THAT THE DETERMINATION BE ANNULLED AND EXPUNGED)/MAIL WATCH AUTHORIZATION (INMATE DISCIPLINARY HEARINGS, FAILURE TO PRODUCE A COPY OF THE MAIL WATCH AUTHORIZATION REQUIRED THAT THE DETERMINATION BE ANNULLED AND EXPUNGED)

THERE WAS NO GOOD REASON TO DENY PETITIONER’S REQUEST FOR A WITNESS, DETERMINATION ANNULLED AND EXPUNGED.

The Third Department determined the hearing officer improperly and without good cause refused to call a witness requested by the petitioner. The determination was therefore annulled and expunged:

Among petitioner’s many contentions is that he was improperly denied his right to call certain witnesses at the hearing. Notably, his defense that he did not act in the manner alleged in the misbehavior report was very much dependent on the testimony of witnesses, correction officers and inmates alike, who were present in the mess hall and who may have observed his actions. In this regard, petitioner asserts that he was improperly denied the right to call the correction officer who was stationed in the gas booth overseeing the mess hall at the time of the incident. The Hearing Officer denied this witness on the basis that “the staff in the gas booth have the entire messhalls . . . to watch and would not be expected to know the details of each incident.” Petitioner objected, stating at the hearing that “the guy in the gas booth would be able to honestly see this incident and give the perfect testimony . . . of what transpired because he’s the guy that controls the gas and if it was a bigger incident tha[n] what it was he’d have to drop the gas.” …

Respondent, however, urges that remittal for a new hearing is the appropriate remedy. Under the particular circumstances presented here, we disagree. Although the Hearing Officer articulated a reason for the denial, the legitimacy of that reason is suspect given that the gas booth officer was in the mess hall for the very purpose of watching the activities of the inmates and responding to problems. There is no support in the record for the Hearing Officer’s baseless conclusion that the officer on duty did not have knowledge of the incident involving petitioner. Matter of Balkum v Annucci, 2017 NY Slip Op 01741, 3rd Dept 3-9-17

 

DISCIPLINARY HEARINGS (INMATES) (THERE WAS NO GOOD REASON TO DENY PETITIONER’S REQUEST FOR A WITNESS, DETERMINATION ANNULLED AND EXPUNGED)

NO PROOF INMATE WAS PROPERLY INFORMED OF THE CONSEQUENCES OF HIS NOT ATTENDING THE HEARING AT THE TIME OF HIS PURPORTED REFUSAL TO ATTEND, DETERMINATION ANNULLED.

The Third Department annulled the determination because there was no proof the proper information was provided to the inmate at the time the inmate purported refused to attend the hearing:

… [T]he only indication in the record that petitioner refused to attend the hearing is the form signed by the Hearing Officer and an employee witness attesting that petitioner refused to attend the hearing. Although the form includes instructions to inform an inmate about the nature of the hearing, the charges against him or her and the fact that the hearing will be conducted in the refusing inmate’s absence, the record reflects no information regarding the steps taken to ascertain the legitimacy of petitioner’s refusal or to inform him of his right to attend the hearing and the consequences of his failure to do so … . Matter of Wilson v Annucci, 2017 NY Slip Op 01617, 3rd Dept 3-2-17

DISCIPLINARY HEARINGS (INMATES) (NO PROOF INMATE WAS PROPERLY INFORMED OF THE CONSEQUENCES OF HIS NOT ATTENDING THE HEARING AT THE TIME OF HIS PURPORTED REFUSAL TO ATTEND, DETERMINATION ANNULLED)

DENIAL OF INMATE’S REQUEST FOR WITNESS TESTIMONY AND INCOMPLETE INVESTIGATION BY EMPLOYEE ASSISTANT REQUIRED ANNULMENT AND EXPUNGEMENT.

The Third Department determined errors made by the hearing officer and employee assistant deprived the inmate of his constitutional right to meaningful employee assistance. The determination was annulled and expunged:

Petitioner contends, among other things, that the Hearing Officer improperly denied his request to have an inmate who was involved in the initial fight testify at the hearing. The Hearing Officer denied this inmate’s testimony as irrelevant, noting that “[a]t the time of [the] incident [,] this inmate was in the process of being restrained by security staff and was face down on the floor.” However, as respondent concedes, there is no proof in the record to substantiate the Hearing Officer’s conclusion. The fight occurred in the area where petitioner allegedly assaulted staff and the requested witness may have made observations helpful to petitioner’s defense. Consequently, the Hearing Officer’s denial of this witness based upon his own speculation as to the content of the witness’s testimony was error … .

… [I]it appears from the record that the assistant interviewed only six of the 30 inmates housed in petitioner’s cell block, five of whom refused to testify and one who provided a vague written statement. It is unclear from the record what attempts, if any, petitioner’s assistant made to interview the other inmates housed in his cell block who were present during the incident. In view of this, and given that the observations of such inmates could have potentially supported petitioner’s defense, petitioner was prejudiced by his assistant’s failure to interview them and by the Hearing Officer’s failure to remedy this deficiency … . Matter of Nance v Annucci, 2017 NY Slip Op 01044, 3rd Dept 2-9-17

 

DISCIPLINARY HEARINGS (INMATES) (DENIAL OF INMATE’S REQUEST FOR WITNESS TESTIMONY AND INCOMPLETE INVESTIGATION BY EMPLOYEE ASSISTANT REQUIRED ANNULMENT AND EXPUNGEMENT)

FLAWED EVIDENCE REQUIRED ANNULMENT OF SMUGGLING CHARGES.

The Third Department determined problems with the recording of a conversation and other evidentiary failures required annulment of the smuggling charges:

The tape-recorded conversation that was read into the record during the hearing is replete with inaudible portions rendering it impossible to ascertain if, in fact, petitioner was a participant in the smuggling plan … . Moreover, the investigator who authored the misbehavior report did not identify the coded language allegedly used during the telephone conversation that led him to believe that petitioner was involved in such a plan … . The confidential information considered by the Hearing Officer in camera — which only calls the accuracy of the conversation read into the record at the hearing into further doubt — does not remedy these deficiencies. Thus, the determination must be partially annulled. Matter of McGriff v Venettozzi, 2017 NY Slip Op 00530, 3rd Dept 1-26-17

DISCIPLINARY HEARINGS (INMATES) (FLAWED EVIDENCE REQUIRED ANNULMENT OF SMUGGLING CHARGES)

FAILURE TO INQUIRE INTO WITNESS’S REFUSAL TO TESTIFY REQUIRED A NEW HEARING.

The Third Department determined the hearing officer’s failure to inquire into a witness’s reasons for refusing to testify required a new hearing:

Where, as here, an inmate initially agrees to testify and later refuses, “[i]t [is] incumbent upon the Hearing Officer . . . to conduct a personal inquiry unless a genuine reason for the refusal is apparent from the record and the Hearing Officer ma[kes] a sufficient inquiry into the facts surrounding the refusal to ascertain its authenticity” … . Significantly, “an inmate’s refusal that is based upon a desire not to be involved is not adequate to excuse a personal inquiry by the Hearing Officer” … . The Hearing Officer failed to conduct the requisite personal inquiry here, notwithstanding his offer to do so. Inasmuch as the inmate’s testimony was potentially relevant to charges for which petitioner was found guilty … , we find that petitioner was denied his regulatory right to call witnesses and that the matter must be remitted for a new hearing … . Matter of Banks v Annucci, 2017 NY Slip Op 00529, 3rd Dept 1-26-17

DISCIPLINARY HEARINGS (INMATES) (FAILURE TO INQUIRE INTO WITNESS’S REFUSAL TO TESTIFY REQUIRED A NEW HEARING)

HEARING OFFICER’S DENIAL OF REQUEST FOR A WITNESS AND FAILURE TO INQUIRE INTO INMATE WINTESSES’ REFUSAL TO TESTIFY REQUIRED A NEW HEARING.

The Third Department determined the hearing officer’s denial of petitioner’s request for a witness and failure to inquire into the reasons witnesses refused to testify required a new hearing:

… [T]he Hearing Officer improperly denied petitioner’s request to have a State Police investigator testify and failed to make a proper inquiry into the reasons that certain inmate witnesses refused to testify. Although the Hearing Officer denied the investigator’s testimony as irrelevant because he was not present at the time of the attack and his investigation was separate from the one conducted by correction officials, petitioner maintained that the investigator obtained statements during the course of his investigation that materially contradicted the evidence relied upon by correction officials. Inasmuch as such testimony would have been potentially helpful to petitioner’s defense, the Hearing Officer erred in denying it. However, given that the Hearing Officer articulated a good-faith reason for such denial, this was at most a regulatory violation entitling petitioner to a new hearing and not expungement … .

As for the inmate witnesses’ refusal to testify, the Hearing Officer relied upon the notations contained in the employee assistant form indicating that they were interviewed as potential witnesses, but did not agree to testify. The Hearing Officer, however, did not make any inquiry into the reasons for their refusal or obtain written refusal forms from them. Although this constituted a denial of petitioner’s right to call witnesses, it too was only a regulatory violation inasmuch as the employee assistant had ascertained whether the inmate witnesses would be willing to testify and the Hearing Officer’s reliance on the employee assistant form constitutes a good-faith basis for denying petitioner’s request … . Matter of Mosley v Annucci, 2017 NY Slip Op 00061, 3rd Dept 1-5-17

 

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER’S DENIAL OF REQUEST FOR A WITNESS AND FAILURE TO INQUIRE INTO INMATE WINTESSES’ REFUSAL TO TESTIFY REQUIRED A NEW HEARING)

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