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HEARING OFFICER’S REFUSAL TO CALL A REQUESTED WITNESS REQUIRED ANNULMENT OF THE DETERMINATION.

The Third Department determined the hearing officer’s refusal to call a witness requested by the inmate required annulment:

Petitioner contends, among other things, that he was improperly denied the right to call as a witness an inmate who allegedly overheard a conversation between petitioner and the author of the misbehavior report establishing that the author lied about seeing petitioner place drugs on the food tray. According to petitioner, during this conversation the correction officer admitted that he reported that he saw petitioner put the drugs in the food tray in order to “cover his ass” after being advised to do so by another correction officer. At the hearing, petitioner maintained that the verbal exchange between the two officers revealing that the author was advised to make this misrepresentation was captured on a videotape of the area outside the observation room. When the videotape was played at the hearing, however, the audio was not working. Consequently, the only evidence that could potentially corroborate petitioner’s defense was the testimony of the other inmate.  Matter of McFarlane v Annucci, 2016 NY Slip Op 08432, 3rd Dept 12-15-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER’S REFUSAL TO CALL A REQUESTED WITNESS REQUIRED ANNULMENT OF THE DETERMINATION)

FAILURE TO VERIFY THAT TWO WITNESSES REFUSED TO TESTIFY REQUIRED A NEW HEARING.

Although the evidence was sufficient to support the misbehavior determinations, the hearing officer’s handling of petitioner’s requests for two witnesses required a new hearing:

… [T]he Hearing Officer improperly denied petitioner’s request to call two inmate witnesses. Although the Hearing Officer noted that the two witnesses had informed petitioner’s employee assistant that they refused to testify, no explanation for the refusal was given and the Hearing Officer made no attempt to verify the basis for the refusal. Accordingly, we find that petitioner’s regulatory right to call witnesses was violated and the determination of guilt with respect to the charges in the first misbehavior report must be annulled and the matter remitted for a new hearing … . Matter of DeJesus v Venettozzi, 2016 NY Slip Op 08404, 3rd Dept 12-15-16

DISCIPLINARY HEARINGS (INMATES) (FAILURE TO VERIFY THAT TWO WITNESSES REFUSED TO TESTIFY REQUIRED A NEW HEARING)

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DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED FOR REVIEW, NO NEED FOR PETITIONER TO SPECIFICALLY OBJECT.

The Court of Appeals determined Supreme Court erred when it held petitioner (Henry, an inmate charged with participating in an assault) had not preserved evidentiary issues for review. Henry had requested certain documents and witness-testimony which were not provided. The Court of Appeals found the denial of Henry’s requests was preserved despite his failure to specifically object during the hearing:

An inmate charged with violating a prison regulation is entitled to due process protections which include a right “to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals” … . Contrary to the conclusion of the Appellate Division, Henry cannot be deemed to have waived his challenges simply because he failed to make specific objections at the hearing.

In sum, the record shows that Henry plainly requested access to specific documents and witnesses, and the Hearing Officer denied some of those requests. In light of the denial of Henry’s requests, the courts below erred in determining that Henry’s failure to specifically object to the Hearing Officer’s unfavorable rulings constituted a failure to preserve those rulings for judicial review. Matter of Henry v Fischer, 2016 NY Slip Op 08395, CtApp 12-15-16

 

DISCIPLINARY HEARINGS (INMATES) (DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED FOR REVIEW, NO NEED FOR PETITIONER TO SPECIFICALLY OBJECT)/EVIDENCE (DISCIPLINARY HEARINGS (INMATES), DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED FOR REVIEW, NO NEED FOR PETITIONER TO SPECIFICALLY OBJECT)/APPEALS (DISCIPLINARY HEARINGS (INMATES), DENIALS OF PETITIONER’S REQUESTS FOR DOCUMENTS AND WITNESSES WERE PRESERVED FOR REVIEW, NO NEED FOR PETITIONER TO SPECIFICALLY OBJECT)

PETITIONER WAS NOT ALLOWED TO PRESENT RELEVANT DOCUMENTARY EVIDENCE, DETERMINATION ANNULLED.

The Third Department annulled the determination because petitioner was not allowed to present relevant documentary evidence:

Initially, respondent concedes, and we agree, that substantial evidence does not support the finding that petitioner was guilty of violating facility correspondence procedures. Turning to the merits, petitioner asserts that he was improperly denied the right to present documentary evidence in support of his defense, an issue that, contrary to respondent’s contention, we find preserved for our review. The record establishes that when petitioner informed the Hearing Officer that he had documentary evidence, albeit not with him at that time, that would support his defense of retaliation, the Hearing Officer adjourned the hearing without addressing the issue of the documentary evidence and, immediately upon recommencement of the hearing, rendered the determination of guilt. Because the documentary evidence was relevant to petitioner’s exculpatory explanation regarding the content of the letter that formed the basis of the misbehavior report, as well as to his defense of retaliation, and because we cannot say that petitioner was not prejudiced by the omission of the documents, the determination must be annulled … . Matter of Telesford v Annucci, 2016 NY Slip Op 08149, 3rd Dept 12-1-16

DISCIPLINARY HEARINGS (INMATES) (PETITIONER WAS NOT ALLOWED TO PRESENT RELEVANT DOCUMENTARY EVIDENCE, DETERMINATION ANNULLED)

HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY INTO THE NATURE AND RELIABILITY OF CONFIDENTIAL INFORMATION, DETERMINATION ANNULLED.

The Third Department concluded the nature of the confidential information provided to the hearing officer and the hearing officer’s failure to adequately inquire into the reliability of the information required annulment of the determination:

Here, the confidential information considered by the Hearing Officer consisted of, among other things, memoranda prepared by correction officials that briefly summarized their interviews with three confidential sources who stated, in conclusory fashion, that petitioner was the individual who broke the window. In addition, a memorandum and photo array identification were provided by one of the confidential sources, but were similarly lacking in detail. The Hearing Officer also considered the confidential testimony of the two correction officials who spoke directly with the confidential sources. The officials related that the sources identified petitioner as the individual who broke the window, but did not reveal any specific information regarding the basis of their knowledge. Significantly, there is no indication that the sources actually witnessed petitioner break the window nor any explanation as to how they acquired this information. In addition, the correction officials who interviewed them did not provide any endorsement of their reliability other than to state that they freely provided the information and were not coerced. Under these circumstances, we conclude that the Hearing Officer failed to undertake the requisite independent assessment of the confidential information to establish its reliability … . Matter of Belliard v New York State Dept. of Corr., 2016 NY Slip Op 07382, 3rd Dept 11-10-16

 

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY INTO THE NATURE AND RELIABILITY OF CONFIDENTIAL INFORMATION, DETERMINATION ANNULLED)/EVIDENCE (INMATE DISCIPLINARY HEARINGS, HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY INTO THE NATURE AND RELIABILITY OF CONFIDENTIAL INFORMATION, DETERMINATION ANNULLED)

HEARING OFFICER FAILED TO MAKE A MEANINGFUL INQUIRY INTO INMATE WITNESS’S ALLEGATION HE WAS COERCED INTO REFUSING TO TESTIFY.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined: (1) an inmate's statement that he/she does not wish to be involved or does not want to testify is sufficient to protect the inmate's right to call the witness; and (2) the hearing officer's failure to inquire into an inmate witness's allegation of he was coerced into refusing to testify required reversal:

… [W]hen there is a “claim of coercion, . . . the Hearing Officer ha[s] a duty to inquire further into [the] refusal to testify” … . Whether such an inquiry will require an in-person or telephone interview of the refusing inmate by the hearing officer or may instead proceed through the intermediary of a suitably briefed correction officer will depend on the circumstances surrounding the allegation.

Here, the hearing officer failed to make a meaningful inquiry, either personally or through a correction officer, into the allegation of coercion by the refusing inmate witness. Matter of Cortorreal v Annucci, 2016 NY Slip Op 06943, CtApp 10-25-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER FAILED TO MAKE A MEANINGFUL INQUIRY INTO INMATE WITNESS'S ALLEGATION HE WAS COERCED INTO REFUSING TO TESTIFY)

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HEARING OFFICER’S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER DEPRIVED PETITIONER OF A FAIR HEARING, DETERMINATION ANNULLED.

The Second Department determined several failures to gather proof requested by the inmate (petitioner) deprived petitioner of a fair disciplinary hearing. The determination was annulled and the violation expunged. The hearing officer, inter alia: (1) failed to retrieve a document which could have supported the petitioner’s claim he was not served with the proper disciplinary papers; (2) failed to ascertain the identity of the confidential informant who claimed a weapon was in petitioner’s cell; and (3) failed to ask a witness (petitioner claimed the witness planted the weapon) relevant questions posed by the petitioner:

Considering all of these circumstances, the petitioner did not receive a fair hearing … . While a prison inmate facing a disciplinary hearing is not entitled to the same level of due process as a criminal defendant, there are minimum standards that must be met … . Here, since the petitioner did not receive a fair hearing, the minimum due process standard was not met … . Matter of Harvey v Prack, 2016 NY Slip Op 06497, 2nd Dept 10-5-16

 

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER’S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER DEPRIVED PETITIONER OF A FAIR HEARING, DETERMINATION ANNULLED)/EVIDENCE (DISCIPLINARY HEARINGS, INMATES, (HEARING OFFICER’S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER DEPRIVED PETITIONER OF A FAIR HEARING, DETERMINATION ANNULLED)

HEARING OFFICER SHOULD HAVE INQUIRED FURTHER INTO INMATE’S REFUSAL TO TESTIFY IN PETITIONER’S HEARING, NEW HEARING ORDERED.

The Third Department determined petitioner was entitled to a new hearing. An inmate petitioner wished to call as a witness refused to testify, giving a reason which was on its face untrue. In that circumstance, the hearing officer was obligated to inquire further into the reason for the inmate’s refusal:

During the disciplinary hearing, petitioner requested the testimony of the other inmate who was present in the room at the time of the incident. The Hearing Officer contacted that inmate, who refused to testify and executed a refusal form stating, “I know nothing.” This statement, however, is belied by evidence in the record. According to the unusual incident report, the potential inmate witness informed correction officers that petitioner “stabbed [the victim] with the weapon that was found in the garbage can.” Notably, the Hearing Officer specifically referenced the witness’s account of the incident in his statement of the evidence that he relied on in making the determination of guilt. Inasmuch as evidence in the record “casts doubt on the authenticity of the reason[] given” for the witness’s refusal … , and there is nothing in the record indicating that the Hearing Officer made any further inquiry, we find that petitioner’s right to call witnesses was violated … . Insofar as the Hearing Officer articulated a good-faith reason for the denial of the witness, “this amounts to a regulatory violation requiring that the matter be remitted for a new hearing” … . Matter of Peterson v Annucci, 2016 NY Slip Op 05681, 3rd Dept 7-28-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER SHOULD HAVE INQUIRED FURTHER INTO INMATE’S REFUSAL TO TESTIFY IN PETITIONER’S HEARING, NEW HEARING ORDERED)/INMATES (HEARING OFFICER SHOULD HAVE INQUIRED FURTHER INTO INMATE’S REFUSAL TO TESTIFY IN PETITIONER’S DISCIPLINARY HEARING, NEW HEARING ORDERED)

AUTHORIZATION TO OPEN PETITIONER’S MAIL WAS INVALID.

The Third Department determined the authorization purporting to allow the opening of petitioner’s mail was invalid:

Petitioner argues that his mail was opened in violation of established mail watch procedures. Specifically, petitioner contends that the “express written authorization” that permitted facility personnel to open, inspect or read his outgoing correspondence (7 NYCRR 720.3 [3] [e]) failed to “set forth the specific facts forming the basis for the action” (7 NYCRR 720.3 [e] [1]) and, as such, the subject authorization was invalid. Upon reviewing the document at issue, we agree. Accordingly, the determination of guilt must be annulled … . Matter of Ramos v Annucci, 2016 NY Slip Op 05601, 3rd Dept 7-21-16

DISCIPLINARY HEARINGS (INMATES) (AUTHORIZATION TO OPEN PETITIONER’S MAIL WAS INVALID)/INMATES (AUTHORIZATION TO OPEN PETITIONER’S MAIL WAS INVALID)/MAIL (INMATES, AUTHORIZATION TO OPEN PETITIONER’S MAIL WAS INVALID)

HEARING OFFICER IMPROPERLY LIMITED THE NUMBER OF WITNESS PETITIONER COULD CALL, NEW HEARING REQUIRED.

The Third Department determined the hearing officer improperly limited the number of witnesses petitioner could call for the hearing. a new hearing was required:

Prior to the hearing, petitioner gave his assistant a list of 13 potential inmate witnesses who might testify. At the hearing, it appears that he wished to have some of these witnesses testify, but the content of their proposed testimony was never ascertained by the Hearing Officer. Instead, the Hearing Officer limited the number of witnesses to three, stating that he was not going to allow redundant testimony. Significantly, however, the Hearing Officer never explained the reason that the testimony would be redundant and this is not clear from the record. Under these circumstances, we find that the denial of the remaining inmate witnesses was error… . Matter of Payton v Annucci, 2016 NY Slip Op 03791, 3rd Dept 5-12-16

DISCIPLINARY  HEARINGS (INMATES) (HEARING OFFICER IMPROPERLY LIMITED THE NUMBER OF WITNESS PETITIONER COULD CALL, NEW HEARING REQUIRED)

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