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New York Prisoner Entitled to Reasons for Witnesses Refusal to Testify at Disciplinary Hearing
New York Prisoner Entitled to Reasons for Witnesses Refusal to Testify at
Disciplinary Hearing
The New York Supreme Court, Appellate Division, held that a
prisoner is entitled to have established a witness' reasons for refusing
to testify at a disciplinary hearing. Prisoner Rickey Moore was found
guilty of disobeying a direct order and movement violations after he twice
disobeyed a guard's orders to face forward and keep his hands clasped
behind his head while being admitted to the special hearing unit.
The Court agreed the Hearing Officer failed to ascertain why the prisoner
witness refused to testify. Where the record does not reflect any reason
for the witness' refusal to testify, or that any inquiry was made of him
as to why he refused or that the hearing officer communicated with the
witness to verify his refusal to testify, there has been a denial of the
inmate's right to call witnesses as provided in the regulation." The
Court also found there were insufficient details from the guard who
obtained the prisoner's signature to assess the authenticity of the
refusal.
The Court also found it was error for the Hearing Officer to make minimal
effort to secure a videotape of the incident or ascertain whether one
existed.
Accordingly, the Court ordered all references to this disciplinary
proceeding to be expunged from the prisoner's prison record and to restore
all good time taken as a result. See: Moore v. Guard, 281 A.D. 2d 736;
721 N.Y.S. 2d 573 (N.Y.A.D. 3 Dept. 2001).
Disciplinary Hearing
The New York Supreme Court, Appellate Division, held that a
prisoner is entitled to have established a witness' reasons for refusing
to testify at a disciplinary hearing. Prisoner Rickey Moore was found
guilty of disobeying a direct order and movement violations after he twice
disobeyed a guard's orders to face forward and keep his hands clasped
behind his head while being admitted to the special hearing unit.
The Court agreed the Hearing Officer failed to ascertain why the prisoner
witness refused to testify. Where the record does not reflect any reason
for the witness' refusal to testify, or that any inquiry was made of him
as to why he refused or that the hearing officer communicated with the
witness to verify his refusal to testify, there has been a denial of the
inmate's right to call witnesses as provided in the regulation." The
Court also found there were insufficient details from the guard who
obtained the prisoner's signature to assess the authenticity of the
refusal.
The Court also found it was error for the Hearing Officer to make minimal
effort to secure a videotape of the incident or ascertain whether one
existed.
Accordingly, the Court ordered all references to this disciplinary
proceeding to be expunged from the prisoner's prison record and to restore
all good time taken as a result. See: Moore v. Guard, 281 A.D. 2d 736;
721 N.Y.S. 2d 573 (N.Y.A.D. 3 Dept. 2001).
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Related legal case
Moore v. Guard
| Year | 2001 |
|---|---|
| Cite | 281 A.D. 2d 736; 721 N.Y.S. 2d 573 (N.Y.A.D. 3 Dep |
| Level | State Court of Appeals |
| Conclusion | Bench Verdict |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | Granted |
Moore v. Goord, 721 N.Y.S.2d 573 (N.Y.App.Div. 03/08/2001)
[1] Supreme Court, Appellate Division, Third Department, New York
[2] 2001 N.Y. Slip Op. 01933, 721 N.Y.S.2d 573
[3] March 8, 2001
[4] IN THE MATTER OF RICKEY MOORE, PETITIONER,
v.
GLENN S. GOORD, AS COMMISSIONER OF THE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.
[5] Counsel: Rickey Moore, Dannemora, petitioner in person. Eliot Spitzer, Attorney-General (Kathleen M. Treasure of counsel), Albany, for respondent.
[6] Cardona, P.J., Mercure, Peters, Mugglin and Rose, JJ.
[7] Calendar Date: January 29, 2001
[8] Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
[9] MEMORANDUM AND JUDGMENT
[10] Following a disciplinary hearing and administrative appeal, petitioner was found guilty of disobeying a direct order and movement violations after he twice disobeyed orders from a correction officer to face forward and keep his hands clasped behind his head while being admitted to the special housing unit. Petitioner commenced this CPLR article 78 proceeding challenging the determination.
[11] Petitioner contends that the Hearing Officer failed to ascertain why an inmate witness refused to testify. We agree. The record establishes that petitioner requested inmate David Torres as a witness. As shown by the employee assistants form and a witness refusal form, however, Torres refused to testify without reason. Notwithstanding petitioner's objections during the hearing that Torres provided no reason for his refusal to testify, the record reveals that the Hearing Officer failed to make a meaningful attempt to secure the reasons for Torres' refusal. Where, as here, "the record does not reflect any reason for the witness' refusal to testify, or that any inquiry was made of him as to why he refused or that the hearing officer communicated with the witness to verify his refusal to testify, there has been a denial of the inmate's right to call witnesses as provided in the regulations" (Matter of Barnes v. LeFevre, 69 NY2d 649, 650; see, Matter of Dawes v. Selsky, 239 AD2d 796, 796-797; Matter of Brodie v. Selsky, 203 AD2d 671). Furthermore, there are insufficient details from the correction officer who obtained Torres' signature on the witness refusal form for the Hearing Officer to assess the authenticity of Torres' refusal to testify (see, Matter of Dawes v. Selsky, supra, at 797).
[12] We also find error in the Hearing Officer's minimal effort to secure a videotape of the incident or to ascertain whether one existed despite petitioner's repeated requests for such evidence. In view of our holding, we need not reach petitioner's remaining contentions.
[13] Cardona, P.J., Mercure, Peters, Mugglin and Rose, JJ., concur.
[14] ADJUDGED that the determination is annulled, without costs, petition granted and respondent is directed to expunge all references to this proceeding from petitioner's institutional records and to restore any good time taken from petitioner as a result thereof.
[1] Supreme Court, Appellate Division, Third Department, New York
[2] 2001 N.Y. Slip Op. 01933, 721 N.Y.S.2d 573
[3] March 8, 2001
[4] IN THE MATTER OF RICKEY MOORE, PETITIONER,
v.
GLENN S. GOORD, AS COMMISSIONER OF THE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.
[5] Counsel: Rickey Moore, Dannemora, petitioner in person. Eliot Spitzer, Attorney-General (Kathleen M. Treasure of counsel), Albany, for respondent.
[6] Cardona, P.J., Mercure, Peters, Mugglin and Rose, JJ.
[7] Calendar Date: January 29, 2001
[8] Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
[9] MEMORANDUM AND JUDGMENT
[10] Following a disciplinary hearing and administrative appeal, petitioner was found guilty of disobeying a direct order and movement violations after he twice disobeyed orders from a correction officer to face forward and keep his hands clasped behind his head while being admitted to the special housing unit. Petitioner commenced this CPLR article 78 proceeding challenging the determination.
[11] Petitioner contends that the Hearing Officer failed to ascertain why an inmate witness refused to testify. We agree. The record establishes that petitioner requested inmate David Torres as a witness. As shown by the employee assistants form and a witness refusal form, however, Torres refused to testify without reason. Notwithstanding petitioner's objections during the hearing that Torres provided no reason for his refusal to testify, the record reveals that the Hearing Officer failed to make a meaningful attempt to secure the reasons for Torres' refusal. Where, as here, "the record does not reflect any reason for the witness' refusal to testify, or that any inquiry was made of him as to why he refused or that the hearing officer communicated with the witness to verify his refusal to testify, there has been a denial of the inmate's right to call witnesses as provided in the regulations" (Matter of Barnes v. LeFevre, 69 NY2d 649, 650; see, Matter of Dawes v. Selsky, 239 AD2d 796, 796-797; Matter of Brodie v. Selsky, 203 AD2d 671). Furthermore, there are insufficient details from the correction officer who obtained Torres' signature on the witness refusal form for the Hearing Officer to assess the authenticity of Torres' refusal to testify (see, Matter of Dawes v. Selsky, supra, at 797).
[12] We also find error in the Hearing Officer's minimal effort to secure a videotape of the incident or to ascertain whether one existed despite petitioner's repeated requests for such evidence. In view of our holding, we need not reach petitioner's remaining contentions.
[13] Cardona, P.J., Mercure, Peters, Mugglin and Rose, JJ., concur.
[14] ADJUDGED that the determination is annulled, without costs, petition granted and respondent is directed to expunge all references to this proceeding from petitioner's institutional records and to restore any good time taken from petitioner as a result thereof.