Hearing Officer hearing in New York

2017The misbehavior report, related documentation and physical evidence examined by the Hearing Officer at the hearing provide substantial evidence supporting the determination of guilt (see generally Matter of Gaston v Annucci, 147 AD3d 1131, 1132 [2017]; Matter of Bermudez v Fischer, 107 AD3d 1269, 1270 [2013]).

2017The misbehavior report, related documentation and physical evidence examined by the Hearing Officer at the hearing provide substantial evidence supporting the determination of guilt (see generally Matter of Gaston v Annucci, 147 AD3d 1131, 1132 [2017]; Matter of Bermudez v Fischer, 107 AD3d 1269, 1270 [2013]).

2017Although petitioner maintained that the items were planted in his cell in retaliation for a complaint that he had filed against the author of the misbehavior report, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Giano v Prack, 138 AD3d 1285, 1285-1286 [2016], lv denied 27 NY3d 912 [2016]; Matter of Wilson v Goord, 47 AD3d 1102, 1103 [2008]).

2017Although petitioner maintained that the items were planted in his cell in retaliation for a complaint that he had filed against the author of the misbehavior report, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Giano v Prack, 138 AD3d 1285, 1285-1286 [2016], lv denied 27 NY3d 912 [2016]; Matter of Wilson v Goord, 47 AD3d 1102, 1103 [2008]).

2017Although petitioner maintained that the items were planted in his cell in retaliation for a complaint that he had filed against the author of the misbehavior report, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Giano v Prack, 138 AD3d 1285, 1285-1286 [2016], lv denied 27 NY3d 912 [2016]; Matter of Wilson v Goord, 47 AD3d 1102, 1103 [2008]).

2017Although petitioner maintained that the items were planted in his cell in retaliation for a complaint that he had filed against the author of the misbehavior report, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Giano v Prack, 138 AD3d 1285, 1285-1286 [2016], lv denied 27 NY3d 912 [2016]; Matter of Wilson v Goord, 47 AD3d 1102, 1103 [2008]).

2017The misbehavior report, related documentation and physical evidence examined by the Hearing Officer at the hearing provide substantial evidence supporting the determination of guilt (see generally Matter of Gaston v Annucci, 147 AD3d 1131, 1132 [2017]; Matter of Bermudez v Fischer, 107 AD3d 1269, 1270 [2013]).

2017The misbehavior report, related documentation and physical evidence examined by the Hearing Officer at the hearing provide substantial evidence supporting the determination of guilt (see generally Matter of Gaston v Annucci, 147 AD3d 1131, 1132 [2017]; Matter of Bermudez v Fischer, 107 AD3d 1269, 1270 [2013]).

2022As set forth by the Hearing Officer at the hearing and on the refusal forms, neither testimony from an incarcerated individual regarding his prior unrelated interaction with the correction officer nor the correction officer's disciplinary record and oath of office were relevant to the charges ( see Matter of Bonds v Annucci , 166 AD3d 1250 , 1251 [2018]; Matter of Barca v Fischer , 80 AD3d 1038, 1038 [2011], lv denied 16 NY3d 711 [2011]; Matter of Caraway v Herbert , 285 AD2d 778 , 778—779 [2001]).

2021As set forth by the Hearing Officer at the hearing and on the refusal forms, neither testimony from an incarcerated individual regarding his prior unrelated interaction with the correction officer nor the correction officer's disciplinary record and oath of office were relevant to the charges ( see Matter of Bonds v Annucci , 166 AD3d 1250 , 1251 [2018]; Matter of Barca v Fischer , 80 AD3d 1038, 1038 [2011], lv denied 16 NY3d 711 [2011]; Matter of Caraway v Herbert , 285 AD2d 778, 778-779 [2001]).

2019Petitioner's right to call witnesses was also not violated by the Hearing Officer's denial of his request to call six inmate witnesses, as the record reflects that each of the requested witnesses had not previously agreed to testify and had executed a witness refusal form, which was read by the Hearing Officer at the hearing ( see Matter of Ortiz v Annucci , 163 AD3d 1383 , 1385 [2018]; Matter of Weston v Annucci , 153 AD3d 1537, 1537 [2017]).

2018The record reflects that the requested witness had not previously agreed to testify and had executed a witness refusal form, which was read by the Hearing Officer at the hearing, noting that he had no knowledge of the events in question ( see Matter of Weston v Annucci , 153 AD3d 1537, 1537 [2017]; Matter of Mears v Venettozzi , 150 AD3d 1498, 1499 [2017], lv denied 30 NY3d 905 [2017]).

2014The misbehavior report was prepared as the result of an ongoing investigation and, contrary to petitioner’s claim, was sufficiently detailed to enable him to prepare a defense (see Matter of Scivolette v Track, 102 AD3d at 1024; Matter of Tisano v Fischer, 87 AD3d 1247, 1248 [2011]).

2014The misbehavior report was prepared as the result of an ongoing investigation and, contrary to petitioner’s claim, was sufficiently detailed to enable him to prepare a defense (see Matter of Scivolette v Track, 102 AD3d at 1024; Matter of Tisano v Fischer, 87 AD3d 1247, 1248 [2011]).

2014Turning to the only charge remaining, possession of contraband, substantial evidence consisting of the misbehavior report, related documentation and testimony considered by the Hearing Officer at the hearing and in camera supports that part of the determination finding petitioner guilty of this charge (see Matter of Acosta v Fischer, 98 AD3d 1170, 1171 [2012]; Matter of Reddick v Goord, 43 AD3d 503 [2007]).

2014Turning to the only charge remaining, possession of contraband, substantial evidence consisting of the misbehavior report, related documentation and testimony considered by the Hearing Officer at the hearing and in camera supports that part of the determination finding petitioner guilty of this charge (see Matter of Acosta v Fischer, 98 AD3d 1170, 1171 [2012]; Matter of Reddick v Goord, 43 AD3d 503 [2007]).

2014The misbehavior report, related documentation and testimony considered by the Hearing Officer at the hearing and in camera provide substantial evidence supporting the determination of guilt (see Matter of Thompson v Martuscello, 105 AD3d 1218, 1219 [2013]; Matter of Scivolette v Track, 102 AD3d 1024 [2013]).

2014The misbehavior report, related documentation and testimony considered by the Hearing Officer at the hearing and in camera provide substantial evidence supporting the determination of guilt (see Matter of Thompson v Martuscello, 105 AD3d 1218, 1219 [2013]; Matter of Scivolette v Track, 102 AD3d 1024 [2013]).

2014The misbehavior report, related documentation and testimony considered by the Hearing Officer at the hearing and in camera provide substantial evidence supporting the determination of guilt (see Matter of Thompson v Martuscello, 105 AD3d 1218, 1219 [2013]; Matter of Scivolette v Track, 102 AD3d 1024 [2013]).

2014The misbehavior report, related documentation and testimony considered by the Hearing Officer at the hearing and in camera provide substantial evidence supporting the determination of guilt (see Matter of Thompson v Martuscello, 105 AD3d 1218, 1219 [2013]; Matter of Scivolette v Track, 102 AD3d 1024 [2013]).

2014Furthermore, we reject petitioner’s claim that he was improperly removed from the hearing given that he continued to engage in disruptive and uncooperative behavior despite the Hearing Officer’s warnings that he would be expelled from the hearing if such conduct persisted (see Matter of Blocker v Fischer, 107 AD3d 1285, 1286 [2013]; Matter of Huggins v Noeth, 106 AD3d 1351, 1352 [2013]).

2014Furthermore, we reject petitioner’s claim that he was improperly removed from the hearing given that he continued to engage in disruptive and uncooperative behavior despite the Hearing Officer’s warnings that he would be expelled from the hearing if such conduct persisted (see Matter of Blocker v Fischer, 107 AD3d 1285, 1286 [2013]; Matter of Huggins v Noeth, 106 AD3d 1351, 1352 [2013]).

2014Furthermore, we reject petitioner’s claim that he was improperly removed from the hearing given that he continued to engage in disruptive and uncooperative behavior despite the Hearing Officer’s warnings that he would be expelled from the hearing if such conduct persisted (see Matter of Blocker v Fischer, 107 AD3d 1285, 1286 [2013]; Matter of Huggins v Noeth, 106 AD3d 1351, 1352 [2013]).

2014Furthermore, we reject petitioner’s claim that he was improperly removed from the hearing given that he continued to engage in disruptive and uncooperative behavior despite the Hearing Officer’s warnings that he would be expelled from the hearing if such conduct persisted (see Matter of Blocker v Fischer, 107 AD3d 1285, 1286 [2013]; Matter of Huggins v Noeth, 106 AD3d 1351, 1352 [2013]).

2012Further, the record belies petitioner’s assertion that the determinations of guilt resulted from hearing officer bias rather than from the evidence presented at the hearings (see Matter of Harvey v Bradt, 81 AD3d 1003, 1004 [2011]).

2012Further, the record belies petitioner’s assertion that the determinations of guilt resulted from hearing officer bias rather than from the evidence presented at the hearings (see Matter of Harvey v Bradt, 81 AD3d 1003, 1004 [2011]).

2012Finally, petitioner’s argument regarding the timeliness of the hearing is not preserved for our review due to his failure to raise it during the hearing (see Matter of Allison v Prack, 95 AD3d 1569, 1570 [2012]; Matter of Coleman v Fischer, 87 AD3d at 779).

2012Finally, petitioner’s argument regarding the timeliness of the hearing is not preserved for our review due to his failure to raise it during the hearing (see Matter of Allison v Prack, 95 AD3d 1569, 1570 [2012]; Matter of Coleman v Fischer, 87 AD3d at 779).

2012Finally, petitioner’s argument regarding the timeliness of the hearing is not preserved for our review due to his failure to raise it during the hearing (see Matter of Allison v Prack, 95 AD3d 1569, 1570 [2012]; Matter of Coleman v Fischer, 87 AD3d at 779).

2012Finally, petitioner’s argument regarding the timeliness of the hearing is not preserved for our review due to his failure to raise it during the hearing (see Matter of Allison v Prack, 95 AD3d 1569, 1570 [2012]; Matter of Coleman v Fischer, 87 AD3d at 779).

2012Having failed to request the testimony of the three inmate witnesses in response to the Hearing Officer’s inquiry, petitioner cannot now complain (see Matter of Dillard v Fischer, 98 AD3d 761, 762 [2012]).

2012Having failed to request the testimony of the three inmate witnesses in response to the Hearing Officer’s inquiry, petitioner cannot now complain (see Matter of Dillard v Fischer, 98 AD3d 761, 762 [2012]).

2005Furthermore, given petitioner’s uncooperative and disruptive behavior of refusing to participate in the hearing from the outset and continuous interruptions despite the Hearing Officer’s warnings that such conduct would lead to his removal, we are unpersuaded by petitioner’s contention that he was improperly removed from the hearing (see 7 NYCRR 254.6 [a] [2]; see also Matter of Bernier v Goord, 3 AD3d 746, 747-748 [2004]; Matter of Sowell v Goord, 295 AD2d 835, 836 [2002]; cf. Matter of Boodro v Coughlin, 142 AD2d 820, 821-822 [1988]).

2003Contrary to petitioner’s assertions, his removal from the hearing room was not an abuse of discretion (see 7 NYCRR 254.6 [b]) but was the direct result of his disruptive behavior and came only after the Hearing Officer’s warnings to desist (see Matter of Sowell v Goord, 295 AD2d 835, 836 [2002]).

2022As set forth by the Hearing Officer at the hearing and on the refusal forms, neither testimony from an incarcerated individual regarding his prior unrelated interaction with the correction officer nor the correction officer's disciplinary record and oath of office were relevant to the charges ( see Matter of Bonds v Annucci , 166 AD3d 1250 , 1251 [2018]; Matter of Barca v Fischer , 80 AD3d 1038, 1038 [2011], lv denied 16 NY3d 711 [2011]; Matter of Caraway v Herbert , 285 AD2d 778 , 778—779 [2001]).

2021As set forth by the Hearing Officer at the hearing and on the refusal forms, neither testimony from an incarcerated individual regarding his prior unrelated interaction with the correction officer nor the correction officer's disciplinary record and oath of office were relevant to the charges ( see Matter of Bonds v Annucci , 166 AD3d 1250 , 1251 [2018]; Matter of Barca v Fischer , 80 AD3d 1038, 1038 [2011], lv denied 16 NY3d 711 [2011]; Matter of Caraway v Herbert , 285 AD2d 778, 778-779 [2001]).

2019Accordingly, as petitioner was not prejudiced by the consideration of the confidential information, we find the Hearing Officer's error to be harmless ( see Matter of Perez v Goord , 300 AD2d at 957 ; Matter of Boyd v Coughlin , 105 AD2d 532, 534 [1984]).

1988In Matter of Boyd v Coughlin ( 105 AD2d 532, 533 ), we declared: "[I]t is fundamental that the hearing officer must, at the time of the hearing, inform the inmate that he will consider certain information which will remain confidential and articulate some reason for keeping the information confi dential.” Based upon our in camera review of the confidential documents in that case and in light of the strength of the case against the petitioner, we concluded that the Hearing Officer’s error in failing to comply with this procedural requirement was harmless (see, supra, at 533-534).

2019Although the Hearing Officer reviewed the confidential documentation and solicited brief testimony from the investigating officer, which, on its face, did not reflect that "there was [any] reason to think that the [confidential] informant was motivated by a promise of reward from the prison officials or a personal vendetta against petitioner" ( Matter of Williams v Fischer , 18 NY3d at 890 ; see Matter of Gomez v Venettozzi , 170 AD3d 1414 , 1415 [2019]; Matter of Thomas v Fischer , 99 AD3d 1071, 1071-1072 [2012]), we find that the Hearing Officer's inquiry was not thorough and specific enough

2019Finally, petitioner's challenge to the use of a speakerphone to receive the testimony of a mailroom clerk was not preserved for our review by an objection at the hearing ( see Matter of Infantino v Fischer , 116 AD3d 1305, 1305 [2014]).

2018Accordingly, no further inquiry from the Hearing Officer was required ( see Matter of Ballard v Annucci , 156 AD3d 1013, 1015 [2017]).