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Violation of New York Disciplinary Witness Regulation Merits Rehearing

On October 27, 2015, the New York Court of Appeals held a prisoner’s challenge to a disciplinary hearing determination required remand for determination of whether the facts warranted a rehearing or expungement.

While at Attica Correctional Facility, prisoner George Texeira received a misconduct report for violating prison disciplinary rules. He pled not guilty and requested another prisoner testify at the hearing. That prisoner refused to testify upon belief the incident occurred at another prison.

Texeira requested the prisoner be re-interviewed and advised the incident occurred at Attica. When the hearing reconvened after the hearing officer agreed to the re-interview, it was not stated if the prisoner had been re-contacted or what he said if re-interviewed. The hearing officer found Texeira guilty of the charges.

After that disposition was upheld administratively, Texeira commenced a CPCR Article 78 proceeding, claiming that his constitutional right to call witnesses was violated for failure to make reasonable efforts to contact the witness and requesting expungement of the determination from is prison records.

The Supreme Court granted the petition, annulled the determination, and remitted for a new hearing. The Appellate Division affirmed, concluding some effort was made to obtain the witness, and since the witness was not initially outright denied, only New York’s regulatory right was violated.

As the Court of Appeals noted, New York goes beyond Wolff v. Mc Donnell, 418 U.S. 539 (1974) in that it requires not only the calling of witnesses in the prisoner’s defense, but it also requires a written statement stating the reasons for the denial to call a witness.

In this case, it was clear the hearing officer violated the state regulation to provide a written notice of the denial of the witness. Yet, it was unclear whether Texiera’s constitutional due process right was violated.

In this instance, the court was “unpersuaded that any interplay between [7 NYCRR] 245.5 and the federal constitution mandated expungement.” As such, the Appellate Divisions order was affirmed. See: Texiera v. Fischer, 26 N.Y.3d 230 (N.Y. 2015).

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Related legal case

Texiera v. Fischer