Opinion
64432
03-26-2018
In the Matter of the Application of Robert C. MURAT–HINTON, Petitioner, v. Lieutenant Wayne FARMER No.220, Corrections Lieutenant at Warren County Correctional Facility, Respondent.
Robert C. Murat–Hinton, Lake George, petitioner pro se. Mary Elizabeth Kissane, County Attorney, Lake George (Benjamin M. Botelho of counsel), for respondent.
Robert C. Murat–Hinton, Lake George, petitioner pro se.
Mary Elizabeth Kissane, County Attorney, Lake George (Benjamin M. Botelho of counsel), for respondent.
Robert J. Muller, J.
Petitioner—a former inmate at the Warren County Correctional Facility (hereinafter the Correctional Facility) —was charged in a misbehavior report with insolence and failure to obey. A disciplinary hearing was thereafter held and he was found guilty of both charges, which determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Petitioner was transferred to Downstate Correctional Facility in the Town of Fishkill, Dutchess County on or about March 6, 2018.
Petitioner first contends that he was improperly denied the right to have Correction Officer Polk (hereinafter C.O. Polk)—who authored the misbehavior report—testify at the hearing.
"It is well settled that an inmate has a conditional right to call witnesses at a disciplinary hearing provided that their testimony would not jeopardize institutional safety or correctional goals" (Matter of Morris–Hill v. Fischer , 104 AD3d 978, 978 [2013] ; see 7 NYCRR 254.5 [a]; Matter of Lopez v. Fischer , 100 AD3d 1069, 1070 [2012] ; Matter of Santiago v. Fischer , 76 AD3d 1127, 1127 [2010] ). " ‘A hearing officer's actual outright denial of a witness without a stated good-faith reason, or lack of any effort to obtain a requested witness's testimony, constitutes a clear constitutional violation’ requiring expungement" (Matter of Morris–Hill v. Fischer , 104 AD3d at 978, quoting Matter of Alvarez v. Goord , 30 AD3d 118, 121 [2006] ; see Matter of Caldwell v. Goord , 34 AD3d 1173, 1174–1175 [2006] ). "On the other hand, where a good faith reason for the denial appears in the record, this amounts to a regulatory violation requiring that the matter be remitted for a new hearing" (Matter of Morris–Hill v. Fischer , 104 AD3d at 978 ).
Here, the Hearing Officer issued a memo prior to the hearing denying petitioner's request to call C.O. Polk as a witness because he was "not available for questioning." While the memo did not expressly state why C.O. Polk was not available, the record makes clear that he was no longer employed by the Correctional Facility. Indeed, petitioner submitted a written response to the memo, stating as follows:
"I object to this [h]earing in its entirety. [C.O.] Polk is no longer an employee at this Jail. This infringes on my procedural due process right (as well as right of equal protection) under the 14th amendment that I possess to call wittnesses [sic] at my disciplinary [h]earing, especially the author of my ticket."
Respondent concedes that the Hearing Officer made no effort to ascertain whether C.O. Polk would be willing to testify notwithstanding that he was no longer employed by the Correctional Facility. Respondent further concedes that C.O. Polk's testimony would not have jeopardized institutional safety or correctional goals.
Under the circumstances, the Court finds that the Hearing Officer articulated a good faith reason for the denial—namely that C.O. Polk was not available to testify because he was no longer employed by the Correctional Facility. With that said, however, because the Hearing Officer made no effort to contact C.O. Polk and ascertain his willingness to testify, the Court further finds that petitioner's regulatory rights have been violated (Matter of Morris–Hill v. Fischer , 104 AD3d at 978–979 ; see Matter of Lopez v. Fischer , 100 AD3d at 1071 ; Matter of Santiago v. Fischer , 76 AD3d at 1127 ; Matter of Alvarez v. Goord , 30 AD3d at 121 ).
Petitioner next contends that he was improperly denied the right to review certain videotape footage of the incident underlying the misbehavior report.
An inmate should be allowed to present documentary evidence in his defense—including videotape or surveillance footage—" ‘when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals’ " (Matter of Hillard v. Coughlin , 187 AD2d 136, 139 [1993], lv denied 82 NY2d 651 [1993], quoting Wolff v. McDonnell , 418 US 539, 566 [1974] ; see Matter of Cahill v. Goord , 36 AD3d 997, 998 [2007] ). Where "the videotapes play[ ] a significant role in the Hearing Officer's determination, and the explanations of the Hearing Officer and respondent as to why petitioner could not view the evidence do not adequately articulate ‘institutional safety and inmate privacy considerations,’ [then] petitioner has been denied his regulatory right to reply to the evidence against him" (Matter of Hillard v. Coughlin , 187 AD2d at 140, quoting Matter of Bernier v. Mann , 166 AD2d 798, 799 [1990] ; see Matter of Cahill v. Goord , 36 AD3d at 998 ).
Here, the Hearing Officer undisputably relied on the videotape footage—together with C.O. Polk's statements in the misbehavior report and the witness testimony—in finding petitioner guilty of the charges. With that said, petitioner's request to review the footage prior to the hearing was denied "due to [the] safety and security of the facility." While no further explanation was provided at that time, counsel for respondent states as follows in answer to the petition:
"To allow petitioner to see the footage would impair the safety and security of the jail by revealing the capabilities and locations of the surveillance equipment, information not currently within the knowledge of inmates. Such knowledge would necessarily lead to knowledge of where the inmates are not being surveyed, giving them an opportunity for misbehavior."
Petitioner then disputes these representations in his reply, indicating that "there are a total of five cameras on [the] unit in various places" and "[t]he camera in question observes the ‘day room area.’ " Petitioner further states that "[t]he entire day area is wide open" and there is "no place to ‘misbehave.’ "
Under the circumstances, the Court finds that the explanations proffered for why petitioner could not view the videotape footage did not adequately articulate institutional safety and security concerns. The Hearing Officer's explanation is conclusory and fails to set forth the requisite detail. Counsel's explanation is sufficiently detailed, but he does not maintain an office in the Correctional Facility and has no personal knowledge of its surveillance system and security practices. Indeed, petitioner provided a detailed statement challenging counsel's representations. To the extent that the videotape footage played a significant role in the Hearing Officer's determination, and the explanations proffered as to why petitioner could not view the evidence are inadequate, petitioner has been denied his regulatory right to reply to the evidence against him (see Matter of Cahill v. Goord , 36 AD3d at 998 ; Matter of Hillard v. Coughlin , 187 AD2d at 140 ).
The Court takes no position with respect to whether petitioner should be permitted to view the videotape footage upon remittal. With that said, in the event petitioner's request is again denied, the Hearing Officer must provide an explanation which adequately articulates the institutional safety and inmate privacy considerations.
Briefly, the Court has considered petitioner's contentions that the deficiencies rise to the level of constitutional violations requiring expungement of the record and finds them to be without merit (see Matter of Morris–Hill v. Fischer , 104 AD3d at 978–979 ; Matter of Cahill v. Goord , 36 AD3d at 998 ; Matter of Hillard v. Coughlin , 187 AD2d at 140 ).
Based upon the foregoing, the petition is granted to the extent that the determination is annulled and the matter remitted to respondent for a new hearing not inconsistent with this Decision and Judgment.
Therefore, having considered the Petition of Robert C. Murat–Hinton with exhibits attached thereto, verified on September 1, 2017; Answer and Memorandum of Law of Benjamin M. Botelho, Esq. with exhibits attached thereto, verified on November 9, 2017, and Reply to Verified Answer and Memorandum of Law of Robert C. Murat–Hinton with exhibits attached thereto, dated November 28, 2017, it is hereby
ORDERED AND ADJUDGED that the petition is granted to the extent that the determination is annulled and the matter remitted to respondent for a new hearing not inconsistent with this Decision and Judgment; and it is further
ORDERED AND ADJUDGED that any relief not specifically granted has nonetheless been considered and is denied.
The above constitutes the Decision and Judgment of this Court.
The original of this Decision and Judgment has been filed by the Court together with the submissions enumerated above. Counsel for respondent is hereby directed to obtain a filed copy of the Decision and Judgment for service with notice of entry in accordance with CPLR 5513.