Opinion
340103-2011.
Decided May 13, 2011.
Barbara Hamilton, Esq., Counsel for Petitioner.The Legal Aid Society, Amy Davidoff, Assistant General Counsel, NYC Department of Correction.
Petitioner moves this court pursuant to CPLR Article 78 for vacatur, dismissal and expungement of the determination imposed upon him on January 19, 2011 following a disciplinary hearing held at a New York City correctional facility on Riker's Island as well as release from the Central Punitive Segregation Unit ("CPSU"). The hearing was conducted by Adjudication Captain Nittan, who found the petitioner guilty of violating New York City Department of Correction ("Department") Detainee Conduct Rules 101.17 (Fighting Without a Weapon) and 120.10 (Refusal to Obey a Direct Order), and imposed a penalty of twenty days punitive segregation on each charge. Petitioner claims the Department violated his constitutional right to due process in that the adjudication captain precluded petitioner from presenting witnesses on his behalf by failing to make a reasonable and substantial effort to obtain the testimony of such witnesses, or provide a meaningful basis as to why they were excluded. This court agrees.
As indicated below, petitioner was originally charged with violating Detainee Conduct Rule 101.14, fighting Resulting in Injury. The adjudication captain, however, convicted petitioner of the lesser-included offense of 101.17, Fighting Without a Weapon.
See Hearing Report and Notice of Disciplinary Disposition.
Findings of Fact
On Tuesday, January 11, 2011, at approximately 9:10 p.m., Correction Officer Alberto Porras, shield 7110 ("CO Porras"), assigned to the George R. Vierno Detention Center (GRVC), 7 Upper B, observed the petitioner and two other inmates engaging in a physical altercation with Jeffrey Compress (B C 349-09-10355), Joseph Rivera (B C 241-09-12879), Victor Palaquachi (B C 441-10-06767) and Nestor Martinez (B C 441-09-10999). Despite CO Porras' verbal command to cease, they continued fighting. CO Porras then notified the Probe Team. Upon their arrival, the inmates discontinued their altercation. Several of the inmates sustained minor injuries.
Immediately thereafter, Captain Robinson prepared a Report and Notice of Infraction, dated January 11, 2011. Captain McKenzie, shield 1006, then commenced and supervised an official investigation, which consisted of interviews with CO Porras, the petitioner and other inmates involved in the altercation. Substantiating Captain Robinson's charges, Captain McKenzie referred the matter to an adjudication captain for a disciplinary hearing." On January 13, 2011, at approximately 9:40 a.m., Captain Robinson served petitioner with a Report and Notice of Infraction for violating Department Detainee Conduct Rules 101.14 (Fighting Resulting in Injury) and 120.10 (Refusal to Obey a Direct Order), which the petitioner refused to acknowledge receipt of.
See Report and Notice of Infraction.
See Investigation Report.
Id.
See Report and Notice of Infraction.
On January 19, 2011, at approximately 9:20 a.m., Adjudication Captain Nittan commenced a Department disciplinary hearing at the George R. Vierno Detention Center on Riker's Island, which was electronically recorded on audiotape. At that hearing, petitioner requested permission to present certain witnesses on his behalf. In response to Captain Nittan's inquiry as to who petitioner intended to present, the following occurred:
A transcript of the electronic audiotape recording of the Department's disciplinary hearing was provided to the court and has been reviewed in its entirety.
MR. HOOKS:Whoever they're saying that I allegedly did anything to, cause I don't know anything about this. Whoever they're saying I did something to.
CAPT. NITTAN:Okay, who's your witness?
MR. HOOKS:I didn't even, I don't.
CAPT. NITTAN:I need to know who it is.
MR. HOOKS:I would like you to tell me who I did something to. I didn't do anything. Honestly, I don't know. I really don't know who that's allegedly saying that I did something to. This is why I need to know. So I can ask them or somebody can ask them to clear my name as far as what I did.
CAPT. NITTAN:Okay, well, normally the way this works.
MR. HOOKS:Yes.
CAPT. NITTAN:You have a witness. We give you 24 hours to prepare your defense.
MR. HOOKS:Yes.
CAPT. NITTAN:And you come up with your witnesses and you come to me and say this is who I have.
MR. HOOKS:Yes, ma'am
CAPT. NITTAN:It's not for me to do your work.
MR. HOOKS:Yes, ma'am
CAPT. NITTAN: You've got to give me names or [sic] your witnesses, and I'm supposed to honor your witnesses no matter who they are, but I need a name. I can't go by whoever they're accusing you of [sic]. . . .
Okay. So we're going to move on since you don't have the name of your witness. All right?
MR. HOOKS:Yes.
CAPT. NITTAN: Cause I need a name, I can't hunt for an unknown body.
MR. HOOKS:As you, as you, you're going to read the ticket, right?
CAPT. NITTAN:I'm going to read everything now.
See transcript of audiotape recording of the Department's disciplinary hearing.
(emphasis added)
Captain Nittan then conducted the hearing, at which petitioner testified. Relying on the reports written by CO Porras and Captain McKenzie, Captain Nittan substantiated the charges of violating New York City Department of Correction ("Department") Detainee Conduct Rules 101.17 (Fighting Without a Weapon) and 120.10 (Refusal to Obey a Direct Order), and imposed a penalty of twenty days punitive segregation on each charge. Conclusions of LawPetitioner claims the Department violated his constitutional right to due process by Captain Nittan's failure to make a reasonable and substantial effort to obtain the testimony of witnesses he intended to present at his disciplinary hearing, or provide a meaningful basis as to why they were excluded. Regarding an inmate's right to present witnesses at a disciplinary City of New York Department of Correction Directive No. 6500R-B, Section III, provides in pertinent part:
See Hearing Report and Notice of Disciplinary Disposition.
See the New York City Department of Correction Directive, Inmate Disciplinary Due Process Classification #6500R-B attached to respondent's verified answer as Exhibit "D."
C.INFRACTION HEARING PROCEDURES
9.Inmate Rights — The Adjudication Captain will advise the infracted inmate that he/she has the following rights at the hearing:
d.The Right to Present Witnesses — An inmate has the right to have witnesses, both inmate and staff, testify at the hearing in the presence of the infracted inmate; provided they are reasonable available and attending the infraction hearing will not be unduly hazardous to institutional safety or correctional goals.
19.Witnesses at the Hearing: The Adjudication Captain shall ask the inmate if he/she wishes to call any witnesses. This shall be done whether or not there is an indication on the Report and Notice of Infraction that the inmate requested witnesses at the hearing.
b.If the inmate wishes to call inmate or staff witnesses, the witnesses should be called in accordance with the procedures set forth in Section III.C.9.d. of this Directive.
Clearly, Respondent's Departmental Directive provides an inmate with the right to present witnesses on his behalf, provided that their testimony is material to the charged infraction (See Department Directive, Inmate Disciplinary Due Process Classification #6500R-B, Section [C] [24]; Matter of Barnes v LeFevre, 69 NY2d 649; Henderson v NYC Dept of Correction, 274 AD2d 328 [1st Dept 2000]; See also, Wolff v McDonnell, 418 US 539). It is the Department, however, by the presiding adjudication captain, that determines whether such testimony is immaterial, redundant or would jeopardize safety or institutional goals (Department Directive #6500R-B, Section [C] [24]; 9 NYCRR 7006.8[d]; 39 RCNY 1-03[a][10][iii]; 7 NYCRR 253.5 [a]; 254.5 [b]; LeFevre at 649; People ex rel Vega v Smith, 66 NY2d 130; Seymour v Goord , 24 AD3d 831 [3d Dept 2005], lv denied 6 NY3d 711; Koehl v Senkowski , 9 AD3d 749 [3d Dept], lv denied 3 NY3d 612; Matter of Silva v Scully, 138 AD2d 717 [2nd Dept 1988]).
Relying on Wolff v McDonnell, petitioner claims that the Department violated due process because Captain Nittan failed to provide him with a written explanation of her decision denying petitioner's request to call witnesses. Indeed, the Supreme Court has held that there must be a "written statement by the factfinders as to the evidence relied on and reasons" for the disciplinary action ( Morrissey v Brewer, 408 US 471, 489) because "[w]ritten records of proceedings will thus protect the inmate against collateral consequences based on a misunderstanding of the nature of the original proceeding" and help "to insure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts . . . will act fairly" ( Wolff v McDonnell at 565). The Court explained that "[w]ithout written records, the inmate will be at a severe disadvantage in propounding his own cause to or defending himself from others" ( Wolff at 565). While the Supreme Court indicated it "would be useful" for the presiding adjudicating official in an administrative disciplinary proceeding to prepare a written statement explaining its reason for denying an inmate's request to call a witness, they declined to "prescribe it [because] [a]ny less flexible rule appears untenable as a constitutional matter . . . and we stop short of imposing a more demanding rule with respect to witnesses and documents" ( Wolff at 566).
418 US 539 (1974).
New York, however, has no such reluctance. NY Comp Codes R Regs, title 7, section 253.5 [b] explicitly provides:
The inmate may call witnesses on his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented (emphasis added).
Perhaps more significantly, 7 NYCRR 254.5 [b] further provides that "[a]ny witness shall be allowed to testify at the hearing in the presence of the inmate unless the hearing officer determines that doing so will jeopardize institutional safety or correctional goals." What is unequivocally clear is that a denial of an inmate's request to call witnesses at a disciplinary hearing left unexplained or unsupported by the record violates due process ( 7 NYCRR 253.5[b]; Laureano v Kuhlman, 75 NY2d 141; Smith, 66 NY2d 130; Garcia v LeFevre, 64 NY2d 1001; In re Henderson v New York City Department of Correction, 274 AD2d 328 [1st Dept 2000]; Matter of McDermott v Scully, 145 AD2d 421 [2nd Dept 1988]). Here, it is patently obvious that Captain Nittan failed to provide petitioner with a written explanation denying petitioner's request to call the inmate witness. Had the hearing record reflected that Captain Nittan sufficiently addressed petitioner's request, or otherwise supported such denial, this court's analysis may have concluded here. Considering Captain Nittan's appalling indifference to petitioner's request, however, it cannot.
It is well settled that a disciplinary hearing officer must make a reasonable and substantial effort to obtain the testimony of witnesses requested by an inmate at a disciplinary hearing ( Laureano v Kuhlman, 75 NY2d 141; Garcia v LeFevre, 64 NY2d 1001; In re Henderson v New York City Department of Correction, 274 AD2d 328 [1st Dept 2000]; Matter of Alvarez v Goord , 30 AD3d 118 [3d Dept 2006]). Summary denial of such a request, then, in the absence of a good faith basis for doing so, violates that inmate's right to due process ( Henderson at 328; Alvarez at 118. In Henderson, the First Department held that petitioner was denied due process not merely because "there was no record of why the hearing officer denied petitioner's request," but there was no "indication of whether respondents made some effort to obtain the testimony of witnesses" ( Henderson at 328). In Alvarez, petitioner requested the testimony of a female arrested for attempting to smuggle drugs to him during a visit. The hearing officer contacted petitioner's sister (through the phone number provided by petitioner) who informed the officer that the female visitor refused to testify. The court held petitioner's due process rights were violated by the hearing officer's failure to contact, or attempt to contact, the female visitor to determine the basis for such refusal ( Alvarez at 118).
Conversely, there was no due process violation where a hearing officer inquired of 76 inmates in an attempt to locate an inmate witness before learning he had subsequently been released on parole because the hearing officer then contacted the inmate's parole officer and arranged for him to testify by telephone ( Rodriguez v Coombe, 239 AD2d 854 [3d Dept 1997], lv denied 91 NY2d 907). And in a case strikingly similar to the instant matter, an inmate requested the testimony of the 17 inmates present during a physical altercation. Because the facility records containing their names no longer existed, the inmates were unidentifiable. The court determined there was no due process violation because the hearing officer made diligent efforts to identify some of the inmates and obtain their testimony ( West v Bezio , 63 AD3d 1464 [3d Dept 2009].
Here, Captain Nittan's abject failure to entertain even the most basic, and entirely reasonable, request is both shocking and troubling. All petitioner requested was the names of those inmates he allegedly assaulted. Such a request hardly required a herculean effort to honor considering that their names and inmate numbers appear on the Report and Notice of Infraction, which the captain read into the record moments later. Instead, Captain Nittan flippantly dismissed petitioner's request, stating,
See transcript of audiotape recording of the Department's disciplinary hearing.
"You've got to give me names . . . I need a name. I can't go by whoever they're accusing you of [sic]. . . . So we're going to move on since you don't have the name of your witness. . . . Cause I need a name, I can't hunt for an unknown body."
The plain and simple fact is that the captain had the inmates' names and numbers. It is beyond a cavil that the captain would have to "hunt for an unknown body." By any analytic perspective, Captain Nittan provided no good faith basis for refusing petitioner's request to call the inmate witnesses involved in the physical altercation, and made absolutely zero effort to procure their testimony. Accordingly, this court finds such failure unquestionably violated petitioner's constitutional right to due process.
It is, therefore, ordered that petitioner's application be sustained. It is further ordered that petitioner be released from CPSU, and that the disciplinary determination against him be vacated, dismissed and expunged.
This constitutes the decision and order of the court.