Opinion
64968
06-27-2018
In the Matter of the Application of Robert C. MURAT-HINTON, Petitioner, for Judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. Lieutenant Wayne FARMER No.220, Corrections Lieutenant at Warren County Jail, Respondent.
Robert C. Murat-Hinton, petitioner pro se. Mary Elizabeth Kissane, County Attorney, Lake George (Amy Lavine of counsel), for respondent.
Robert C. Murat-Hinton, petitioner pro se.
Mary Elizabeth Kissane, County Attorney, Lake George (Amy Lavine 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 "offenses against public order." 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 his request for employee assistance was improperly denied. Specifically, petitioner contends that several of his witnesses were confined in administrative segregation and—as an inmate—he was prohibited from communicating with them.
The Court finds this contention to be without merit. Under 9 NYCRR 7006.6 (a), "[i]f an inmate is non-English speaking, illiterate, or for any other reason is unable to prepare a defense, assistance shall be provided to the inmate by a person designated by the chief administrative officer at least 24 hours prior to the hearing." Here, petitioner is neither non-English speaking nor illiterate. Further, he was able to obtain written statements from the two inmate witnesses in administrative segregation and, as such, was undisputably able to prepare a defense (compare Matter of Vaughn v. Orlando , 79 AD3d 1048, 1050 [2010] ).
Petitioner next contends that he was improperly denied the right to be present during the testimony of Correction Officer D'Ambrosio—who authored the misbehavior report—and Correction Officer Hill—a witness to the conduct underlying the report, both of whom gave testimony to the Hearing Officer by telephone.
The Court finds this contention to be without merit as well. "Although an inmate has the right to be present during the testimony of any witness whom the inmate has called to testify, in this instance, the [Correction Officers were] called as ... witness[es] by the Hearing Officer; hence, petitioner had no right to be present" (Matter of Chastine v. Selsky , 303 AD2d 801, 802 [2003] ; see Matter of La Bounty v. Goord , 245 AD2d 675, 676 [1997], appeal dismissed 91 NY2d 1002 [1998] ; Matter of Collazo v. Coombe , 235 AD2d 654, 655 [1997] ).
Finally, petitioner contends that he was denied the right to call witnesses. Specifically, petitioner contends that he was denied the right to call inmates Fish and Marr as witnesses.
"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, petitioner requested the testimony of nine inmates: (1) Marr; (2) Richardson; (3) Cribb; (4) Rivett; (5) Willett; (6) Bongiorno; (7) Fish; (8) Tracey; and (9) Eddy. Inmate Tracey testified on January 17, 2018 and inmates Willet, Cribb, Bongiorno, Rivett and Eddy testified on January 19, 2018. Insofar as inmate Fish is concerned, petitioner states as follows:
"On [January 17, 2018, inmate Fish] was called out of my presence[ and] apparently ‘refused.’ After I was told this by [the] Hearing Officer ..., I challenged this by saying, ‘I know he has to say a reason why.’ (This inmate had previously told me he would testify, before moving to a different unit.) [The] Hearing Officer ... said, ‘are you gonna argue?’ I said nothing further as I did not want to be kicked out of the hearing."
With respect to inmate Marr, petitioner states:
"On or about January 17, 2018 [my] main witness left the facility. Inmate Marr was the minor inmate involved in [the] alleged incident."
While it does not appear that inmate Richardson testified at the hearing, petitioner makes no objections with respect to this witness.
These statements by petitioner—which are set forth in the petition—are the only statements in the record relative to inmates Fish and Marr. Respondent has submitted nothing in this regard. Indeed, aside from a transcript of the testimony given by Correction Officers D'Ambrosio and Hill, there is no record whatsoever of what transpired at the hearing. There is no witness refusal form signed by inmate Fish nor any explanation for his apparent refusal to testify (see Matter of Ballard v. Annucci , ––– AD3d ––––, ––––, 2018 NY Slip Op 04625, *2 [2018]; Matter of Barnes v. LeFevre , 69 NY2d 649, 650 [1986] ). There is nothing to even suggest that the Hearing Officer attempted to speak with inmate Fish to ascertain a reason for his refusal. There is likewise nothing to suggest that the Hearing Officer ever contacted inmate Marr—either before or after his transfer from the Correctional Facility (see Matter of Radcliffe v. Annucci , 157 AD3d 1177, 1178-1179 [2018] ). There is simply nothing. The record is devoid of any proof whatsoever that the Hearing Officer made a good faith effort to secure the testimony of inmates Fish and Marr.
Respondent contends that—under Matter of Cortorreal v. Annucci (28 NY3d 54 [2016] )—the Hearing Officer was not required to inquire why inmate Fish refused to testify. The Court, however, is not persuaded. In Matter of Cortorreal v. Annucci , the inmate witness signed a witness refusal form and checked the box next to the option reading " ‘I do not wish to testify’ " ( id. at 59 ). Petitioner argued that, because the Hearing Officer did not solicit any further explanation, his right to call the witness was violated. The Court of Appeals, however, found that "a simple statement by the inmate on a refusal form that he or she does not want to be involved or does not wish to testify is sufficient to protect the requesting inmate's right to call that witness" ( id. at 60 ). This holding is wholly inapposite to the instant case, as inmate Fish did not sign a witness refusal form or otherwise offer an explanation for his apparent refusal to testify.
Respondent further contends that the Hearing Officer's denial of inmate Marr's testimony was "made on [the] good faith basis that he was unavailable." Again, the Court is unpersuaded. To the extent that inmate Marr apparently left the Correctional Facility on January 17, 2018—the date on which inmate Tracey testified—it appears that the Hearing Officer could have arranged for him to testify prior to his transfer. Further, even if such arrangements could not be made, the Hearing Officer was still obligated to contact inmate Marr at his new correctional facility in an effort to obtain the testimony (see Matter of Radcliffe v. Annucci , 157 AD3d at 1178-1179 ). It is undisputed that the Hearing Officer did none of the above, instead simply denying the testimony based upon the inmate unavailability.
To the extent that respondent contends that the testimony of inmates Fish and Marr was redundant—given the testimony proffered by several other inmates—the Court notes that the Hearing Officer never made any finding in this regard. Moreover, as stated by petitioner, inmate Marr was the main witness to the underlying incident, as petitioner was attempting to defend him in a dispute he was having with Correction Officer D'Ambrosio.
Under the circumstances, the Court finds that petitioner's constitutional right to call witnesses has been violated (see Matter of Ballard v. Annucci , 2018 NY Slip Op 04625 at *2; Matter of Doleman v. Prack , 145 AD3d 1289, 1290-1291 [2016] ). The petition is therefore granted in its entirety and the January 21, 2018 determination finding petitioner guilty of insolence and offenses against public order is annulled. All references to this matter shall be expunged from petitioner's institutional record and respondent shall refund the $20.00 hearing fee to petitioner within thirty (30) days of the date of this Decision and Judgment.
The parties' remaining contentions, to the extent not specifically addressed herein, are either without merit or have been rendered academic by this decision.
Therefore, having considered the Petition with exhibits attached thereto, verified January 29, 2018; and Answer and Memorandum of Law, verified April 2, 2018, it is hereby
ORDERED AND ADJUDGED that the petition is granted in its entirety; and it is further
ORDERED AND ADJUDGED that the January 21, 2018 determination finding petitioner guilty of insolence and offenses against public order is annulled; and it is further
ORDERED AND ADJUDGED that all references to this matter shall be expunged from petitioner's institutional record and respondent shall refund the $20.00 hearing fee to petitioner within thirty (30) days of the date of this Decision and Judgment.
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.