prison disciplinary rule in New York

2013It is well settled that “[a]n inmate has a fundamental right to be present during a prison disciplinary hearing unless he or she is excluded for reasons of institutional safety or correctional goals” (Matter of Cornwall v Fischer, 78 AD3d 1337, 1337 [2010] [internal quotation marks and citations omitted]).

2013It is well settled that “[a]n inmate has a fundamental right to be present during a prison disciplinary hearing unless he or she is excluded for reasons of institutional safety or correctional goals” (Matter of Cornwall v Fischer, 78 AD3d 1337, 1337 [2010] [internal quotation marks and citations omitted]).

2014Petitioner contends that several confiscated items had been reviewed by the mail room at his previous facility without incident but, even if true, “this would not alter the fact that The material is nonetheless prohibited by the prison disciplinary rule’ ” (Matter of Madison v Fischer, 108 AD3d 959 , 960 [2013], quoting Matter of Smith v Fischer, 100 AD3d 1314, 1314 [2012]).

2014Petitioner contends that several confiscated items had been reviewed by the mail room at his previous facility without incident but, even if true, “this would not alter the fact that The material is nonetheless prohibited by the prison disciplinary rule’ ” (Matter of Madison v Fischer, 108 AD3d 959 , 960 [2013], quoting Matter of Smith v Fischer, 100 AD3d 1314, 1314 [2012]).

2014Generally, an inmate has a conditional right to call witnesses at a prison disciplinary hearing when doing so does not threaten institutional safety or correctional goals (see Matter of Santiago v Fischer, 76 AD3d 1127 , 1127 [2010]; Matter of Alvarez v Goord, 30 AD3d 118, 119 [2006]).

2014Generally, an inmate has a conditional right to call witnesses at a prison disciplinary hearing when doing so does not threaten institutional safety or correctional goals (see Matter of Santiago v Fischer, 76 AD3d 1127 , 1127 [2010]; Matter of Alvarez v Goord, 30 AD3d 118, 119 [2006]).

2014Here, as respondent correctly concedes, the Hearing Officer violated petitioner’s right to call witnesses as provided in the regulations (see 7 NYCRR 254.5; see generally Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]).

2014Here, as respondent correctly concedes, the Hearing Officer violated petitioner’s right to call witnesses as provided in the regulations (see 7 NYCRR 254.5; see generally Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986]).

2017Although petitioner argues that the mail room had reviewed the flyers and found them to be unobjectionable, “this would not alter the fact that the material is nonetheless prohibited by the prison disciplinary rule” (Matter of Madison v Fischer, 108 AD3d 959, 960 [2013] [internal quotation marks and citation omitted]; accord Matter of Jay v Fischer, 120 AD3d 1466, 1466 [2014], lv denied 24 NY3d 909 [2014]).

2017Although petitioner argues that the mail room had reviewed the flyers and found them to be unobjectionable, “this would not alter the fact that the material is nonetheless prohibited by the prison disciplinary rule” (Matter of Madison v Fischer, 108 AD3d 959, 960 [2013] [internal quotation marks and citation omitted]; accord Matter of Jay v Fischer, 120 AD3d 1466, 1466 [2014], lv denied 24 NY3d 909 [2014]).

2019With regard to petitioner's argument that the charges violated his right to practice his religion, "an alleged infringement upon an inmate's religious practices does not, by itself, excuse the violation of a prison disciplinary rule" ( Matter of Watson v Gardner , 156 AD3d 1050, 1051 [2017] [internal quotation marks and citation omitted]; see Matter of Rivera v Goord , 2 AD3d 922, 922-923 [2003]; Matter of Rashid v Ketchum , 247 AD2d 670, 671 [1998]).

2017In any event, “inmates are not free to disobey the orders of correction personnel, even if such orders appear to be unauthorized or infringe upon the inmate’s constitutional rights” (Matter of Rashid v Ketchum, 247 AD2d 670, 671 [1998]; see Matter of Allah v Venettozzi, 144 AD3d 1291, 1292 [2016]), and an “alleged infringement upon an inmate’s religious practices does not, by itself, excuse the violation of a prison disciplinary rule” (Matter of Rivera v Goord, 2 AD3d 922, 922 [2003]).

2021The People were not in possession of such material, and the People are under no obligation to locate and gain possession of material from a prison disciplinary hearing for the purpose of turning the material over to the defense, as such an obligation only arises when such material is in the People's possession ( see People v Howard , 87 NY2d 940, 941 [1996]; People v McPherson , 170 AD3d 1255 , 1257 [2019], lv denied 33 NY3d 1071 [2019]).

2019Although the People are not under an obligation to obtain witness statements made during a prison disciplinary hearing ( see People v Howard , 87 NY2d 940, 941 [1996]; People v Lewis , 167 AD3d 158 , 161 [2018]), if such material is in the People's possession, an obligation to disclose arises ( see CPL 240.45 [1] [a]; People v Smith , 89 AD3d 1148, 1150 [2011], lv denied 19 NY3d 968 [2012]; People v Duran , 6 AD3d 809, 811 [2004], lv denied 3 NY3d 639 [2004]).

2017However, while “an inmate has a fundamental right to be present during a prison disciplinary hearing,” he or she may be “excluded for reasons of institutional safety or correctional goals” (Matter of Rupnarine v Prack, 118 AD3d 1062, 1063 [2014] [internal quotation marks, brackets and citation omitted]; see Matter of German v Fischer, 108 AD3d 998, 999 [2013]; 7 NYCRR 254.6 [a] [2]).

2014Petitioner argues that his exclusion from the second day of the hearing requires annulment and expungement. “[A]n inmate has a fundamental right to be present during a prison disciplinary hearing unless he or she is excluded for reasons of institutional safety or correctional goals” (Matter of German v Fischer, 108 AD3d 998, 999 [2013] [internal quotation marks and citation omitted]).

2017Although petitioner argues that the mail room had reviewed the flyers and found them to be unobjectionable, “this would not alter the fact that the material is nonetheless prohibited by the prison disciplinary rule” (Matter of Madison v Fischer, 108 AD3d 959, 960 [2013] [internal quotation marks and citation omitted]; accord Matter of Jay v Fischer, 120 AD3d 1466, 1466 [2014], lv denied 24 NY3d 909 [2014]).

2017Although petitioner argues that the mail room had reviewed the flyers and found them to be unobjectionable, “this would not alter the fact that the material is nonetheless prohibited by the prison disciplinary rule” (Matter of Madison v Fischer, 108 AD3d 959, 960 [2013] [internal quotation marks and citation omitted]; accord Matter of Jay v Fischer, 120 AD3d 1466, 1466 [2014], lv denied 24 NY3d 909 [2014]).

2012Although petitioner asserts that the photograph and other materials had been reviewed and found to be unobjectionable by the facility from which he transferred, the material is nonetheless prohibited by the prison disciplinary rule (see Matter of Arrington v Venettozzi, 87 AD3d 1215, 1215-1216 [2011]; Matter of Delos Santos v Goord, 4 AD3d 709, 710 [2004]).

2012Although petitioner asserts that the photograph and other materials had been reviewed and found to be unobjectionable by the facility from which he transferred, the material is nonetheless prohibited by the prison disciplinary rule (see Matter of Arrington v Venettozzi, 87 AD3d 1215, 1215-1216 [2011]; Matter of Delos Santos v Goord, 4 AD3d 709, 710 [2004]).

2004Contrary to petitioner’s contention, the misbehavior report written by a correction officer who witnessed the event provides substantial evidence to support the determination finding petitioner guilty of violating the prison disciplinary rule that prohibits possessing/exchanging a controlled substance (see Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]; Matter of Gioe v Selsky, 269 AD2d 644, 645 [2000]).

2001Contrary to petitioner’s contention, substantial evidence supports the determination finding him guilty of violating the prison disciplinary rule that prohibits harassing a facility employee (s ee, Matter of Foster v Coughlin, 76 NY2d 964, 966 ).

2025And, because incarcerated individuals "at disciplinary proceedings are not entitled to the full panoply of rights due a criminal defendant or administrative law rules designed for free citizens," the right to counsel during a prison disciplinary hearing has not been seen as a due process right ( Matter of Hillard v Coughlin , 187 AD2d at 139 ; see Wolff v McDonnell , 418 US at 570 ; Matter of Laureano v Kuhlmann , 75 NY2d at 146 ; see also Matter of Texeira v Fischer , 26 NY3d 230, 233 [2015]).

2016We granted petitioner leave to appeal and now reverse. f—H HH An inmate at a prison disciplinary hearing retains the constitutional right to procedural due process, “implemented by the prison regulations in this State” (Matter of Laureano v Kuhlmann, 75 NY2d 141, 146 [1990]).

2004The misbehavior report, the positive test results and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Gonzalez v Selsky, 301 AD2d 1019, 1019-1020 [2003]).

2003Contrary to petitioner’s contention, the misbehavior report, the two positive urinalysis test results and the testimony presented at the disciplinary hearing provide substantial evidence of his guilt (see Matter of Gonzalez v Selsky, 301 AD2d 1019, 1020 [2003]; Matter of Irons v Goord, 283 AD2d 705 [2001]).

2025And, because incarcerated individuals "at disciplinary proceedings are not entitled to the full panoply of rights due a criminal defendant or administrative law rules designed for free citizens," the right to counsel during a prison disciplinary hearing has not been seen as a due process right ( Matter of Hillard v Coughlin , 187 AD2d at 139 ; see Wolff v McDonnell , 418 US at 570 ; Matter of Laureano v Kuhlmann , 75 NY2d at 146 ; see also Matter of Texeira v Fischer , 26 NY3d 230, 233 [2015]).

2016Specifically, an “inmate may call witnesses on his [or her] behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals” (7 NYCRR 254.5 [a]; see Wolff v McDonnell, 418 US 539, 566 [1974]).

2023However, in determining whether a verdict is supported by legally sufficient evidence, this Court reviews only the evidence that was before the jury ( see People v Hall , 57 AD3d 1229, 1230 [3d Dept 2008], lv denied 12 NY3d 784 [2009]).

2023However, in determining whether a verdict is supported by legally sufficient evidence, this Court reviews only the evidence that was before the jury ( see People v Hall , 57 AD3d 1229, 1230 [3d Dept 2008], lv denied 12 NY3d 784 [2009]).

2019With regard to petitioner's argument that the charges violated his right to practice his religion, "an alleged infringement upon an inmate's religious practices does not, by itself, excuse the violation of a prison disciplinary rule" ( Matter of Watson v Gardner , 156 AD3d 1050, 1051 [2017] [internal quotation marks and citation omitted]; see Matter of Rivera v Goord , 2 AD3d 922, 922-923 [2003]; Matter of Rashid v Ketchum , 247 AD2d 670, 671 [1998]).

2017In any event, “inmates are not free to disobey the orders of correction personnel, even if such orders appear to be unauthorized or infringe upon the inmate’s constitutional rights” (Matter of Rashid v Ketchum, 247 AD2d 670, 671 [1998]; see Matter of Allah v Venettozzi, 144 AD3d 1291, 1292 [2016]), and an “alleged infringement upon an inmate’s religious practices does not, by itself, excuse the violation of a prison disciplinary rule” (Matter of Rivera v Goord, 2 AD3d 922, 922 [2003]).

1996This Court has held that a prison disciplinary hearing cannot serve as the basis for a claim of double jeopardy in the context of a subsequent criminal action (see, People v Nunez, 186 AD2d 317, 318 , lv denied 81 NY2d 765 ; People v Frye, 144 AD2d 714 , lv denied 73 NY2d 891 ).

1996However, since the purpose of a prison disciplinary hearing is remedial, not punitive, it does not bar further criminal proceedings against defendant and cannot serve as a basis for a claim of double jeopardy in a subsequent criminal action (see, Matter of Cordero v Lalor, 227 AD2d 848 ; see also, People v Nunez, 186 AD2d 317, 318 , lv denied 81 NY2d 765 ).