Joseph v. LaClair, 112 A.D.3d 1023 (N.Y. App. Div. 2013). · Go Syfert
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Joseph v. LaClair, 112 A.D.3d 1023 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
3 citation events across 1 distinct court.
Strongest positive: Matter of Woodward v. Annucci (nyappdiv, 2019-08-01)
Top citers, strongest first. 2 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Woodward v. Annucci
N.Y. App. Div. · 2019 · confidence medium
Although "an inmate's refusal that is based upon a desire not to be involved is not adequate to excuse a personal inquiry by the Hearing Officer" ( Matter of Banks v Annucci , 146 AD3d at 1268 [internal quotation marks and citations omitted]), the record reflects that the Hearing Officer conducted the requisite personal inquiry and explained to petitioner that the witness did not want to testify because, in addition to not wanting to be involved, he could not recall the incident in detail and was being paroled ( compare Matter of Joseph v LaClair , 112 AD3d 1023, 1024 [2013]; Matter of Abdur�…
discussed Cited as authority (rule) Matter of Sanchez v. Annucci
N.Y. App. Div. · 2015 · signal: cf. · confidence medium
The Hearing Officer personally interviewed the remaining witness, who allegedly initially agreed to testify, about the reason for his refusal and whether the refusal was genuine (see id. at 67 ; see also Matter of James v Bezio, 94 AD3d 1312, 1313 [2012]; cf. Matter of Joseph v LaClair, 112 AD3d 1023, 1024 [2013]).
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In the Matter of Nigel Joseph
v.
Darwin LaClair, as Superintendent of Franklin Correctional Facility
Appellate Division of the Supreme Court of the State of New York.
Dec 5, 2013.
112 A.D.3d 1023
Cited by 2 opinions  |  Published

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered February 12, 2013 in Franklin County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with fighting, violent conduct and creating a disturbance. Following a tier II disciplinary hearing, he was found guilty as charged. Respondent affirmed the determination upon adminis[*1024] trative appeal, prompting petitioner to commence this CPLR article 78 proceeding. Supreme Court dismissed petitioner’s application, and this appeal ensued.

We reverse. Petitioner contends that the Hearing Officer failed to properly investigate the reason why his requested inmate witnesses refused to testify. The record before us reveals that at least one of petitioner’s requested witnesses changed his mind with regard to testifying. Contrary to respondent’s assertion, petitioner’s inquiry as to why the subject inmate had changed his mind constituted a timely request that the Hearing Officer investigate the matter further (cf. Matter of Abdur-Raheem v Prack, 98 AD3d 1152, 1153 [2012]; compare Matter of Taylor v Fischer, 89 AD3d 1298, 1299 [2011]). Moreover, the requested inmate gave no reason for his refusal beyond that he did “not care to get involved,” which did not absolve the Hearing Officer of his obligation to personally ascertain the reasons for the inmate’s unwillingness to testify (see Matter of H’Shaka v Fischer, 100 AD3d 1056, 1057 [2012]; Matter of Hill v Selsky, 19 AD3d 64, 67 [2005]). The Hearing Officer’s failure to do so violated petitioner’s conditional right to call that witness and, as such, we must remit for a new hearing (see Matter of H’Shaka v Fischer, 100 AD3d at 1057). In light of this conclusion, we need not address petitioner’s claims regarding the other requested witnesses.

Rose, J.P, Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is reversed, on the law, without costs, petition granted and matter remitted to respondent for further proceedings not inconsistent with this Court’s decision. [Prior Case History: 2013 NY Slip Op 30417(U).]