Matter of Rafael Cortorreal v. Anthony J. Annucci ( 2016 )


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    This opinion is uncorrected and subject to revision before
    publication in the New York Reports.
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    No. 152
    In the Matter of Rafael
    Cortorreal,
    Appellant,
    v.
    Anthony J. Annucci, &c.,
    Respondent.
    Matthew P. McGowan, for appellant.
    Andrea Oser, for respondent.
    FAHEY, J.:
    A hearing officer presiding at an inmate's disciplinary
    hearing violates the inmate's right to call witnesses by failing
    to undertake a meaningful inquiry into a requested witness's
    allegation that the witness had been coerced into refusing to
    testify in a related proceeding.
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    I.
    While he was incarcerated at Sing Sing Correctional
    Facility, petitioner Rafael Cortorreal was employed as a building
    porter.   On July 25, 2012, a correction officer found marihuana
    hidden in a waste container outside the building where petitioner
    worked.   The officer had been searching for the contraband after
    receiving tips from two confidential informants implicating
    petitioner.
    The correction officer completed an inmate misbehavior
    report alleging that petitioner had violated two standards of
    inmate behavior under 7 NYCRR 270.2.    On August 23, 2012, a Tier
    III disciplinary hearing was held at Sing Sing, and petitioner
    was found guilty of both charges.    The decision was reversed,
    however, on administrative appeal, on the ground that "a
    potentially relevant witness was not properly addressed through
    testimony or denial."
    By the winter, petitioner had been transferred to
    Southport Correctional Facility.     There, a rehearing commenced
    before a hearing officer on December 5, 2012.    The correction
    officer who had charged petitioner testified that, as a building
    porter, petitioner had been given unsupervised access to the area
    where the marihuana had been found, and that other inmates would
    not have had such unmonitored access.
    Petitioner pleaded not guilty, claiming that the
    confidential informants had fabricated their allegations, and
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    that any number of inmates could have placed the marihuana
    outside the building.   Petitioner requested testimony from 10
    inmate witnesses.   Eight refused to testify, completing
    "Requested Inmate Witness Refusal To Testify" forms.     Five of
    these wrote short explanations, next to a preprinted "I do not
    want to be involved" option, generally to the effect that they
    had no knowledge of the situation.      The remaining three inmates
    wrote, next to the same preprinted option, the words "I do not
    wish to testify" or similar language.     (The other two requested
    inmate witnesses are not pertinent to this appeal.)
    On December 21, 2012, the hearing officer showed the
    refusal forms to petitioner and read them to him because
    petitioner had some difficulty reading English.     Petitioner asked
    the hearing officer to confirm "personally" that the eight
    refusing inmates were not willing to testify; the hearing officer
    declined.
    On the same date, the hearing officer accepted into
    evidence a sworn affidavit by one of the refusing inmate
    witnesses, whose testimony petitioner had also requested at the
    August hearing.   In the affidavit, the refusing inmate stated
    that at the time of the first hearing a named correction officer
    at Sing Sing had told him "that it would not be a good thing" to
    testify for petitioner, and that the officer had made this
    communication "in an aggressive manner meant to intimidate."       The
    inmate also stated in the affidavit that he had been "told" what
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    to write on the refusal form he had signed in August.
    The hearing officer did not contact the inmate, nor did
    he contact the correction officer who had allegedly coerced the
    inmate.   Instead, the hearing officer took testimony from the
    correction officer who had been present on December 17, 2012,
    when the inmate signed a refusal form with respect to the
    rehearing.    That officer testified that he had not coerced the
    inmate, that he had not witnessed any coercion, and that the
    inmate had not mentioned any prior intimidation.
    At the conclusion of the rehearing, the hearing officer
    found petitioner guilty of violating the two prison disciplinary
    rules and imposed a penalty of 12 months' punitive confinement in
    a special housing unit.    The Department of Corrections and
    Community Supervision (DOCCS) affirmed the hearing disposition on
    administrative appeal.
    Petitioner commenced this CPLR article 78 proceeding
    against the Acting Commissioner of DOCCS, challenging the
    determination.    He argues that the three refusal forms stating
    only that the requested inmate did not wish to testify failed to
    supply a reason for refusal to testify, as required by our case
    law.   Petitioner also contends that the hearing officer failed to
    conduct adequate inquiry into the allegation of coercion.
    Supreme Court dismissed the petition.    The Appellate Division
    affirmed (Cortorreal v Annucci, 123 AD3d 1337 [3d Dept 2014]).
    We granted petitioner leave to appeal and now reverse.
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    II.
    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]).    Specifically, 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 U.S. 539
    , 566 [1974]).    In Matter of
    Barnes v LeFevre (69 NY2d 649 [1986]), interpreting 7 NYCRR
    254.5, we held that when a requested witness refuses to testify
    and "the record does not reflect any reason for the . . . refusal
    to testify, or that any inquiry was made of him [or her] as to
    why he [or she] refused or that the hearing officer communicated
    with the witness to verify his [or her] refusal to testify, there
    has been a denial of the inmate's right to call witnesses as
    provided in the regulations" (Barnes, 69 NY2d at 650).
    The parties do not dispute that when a requested inmate
    witness steadfastly refuses to testify, a "witness refusal form
    signed by the inmate indicating the reason he would not testify
    adequately protect[s] petitioner's right" to call witnesses
    (Matter of Jamison v Fischer, 119 AD3d 1306, 1306 [3d Dept 2014];
    see also e.g. Matter of Tulloch v Fischer, 90 AD3d 1370, 1371 [3d
    Dept 2011]).   Petitioner contends, however, that an inmate who,
    in refusing to testify, adds no substantive explanation to the
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    printed "I do not want to be involved" line, but merely repeats
    the same idea in different language or writes "I do not wish to
    testify," has not given a "reason" for refusal to testify within
    the meaning of Barnes and its progeny.1    We disagree.
    When a requested inmate witness states that he or she
    is refusing to testify because he or she does not want to get
    involved or does not wish to testify, the inmate is giving a
    reason under Barnes.    As this Court emphasized in its decision,
    the record in Barnes did not reflect "any reason" for the refusal
    (69 NY2d at 650).   We did not suggest that some reasons, and not
    others, are adequate.   The fact that an explanation is minimal
    does not make it any less of a reason.    When a refusing inmate
    witness states that he or she does not wish to testify, that is
    providing a reason.    The statement clarifies that the inmate will
    not testify because he or she does not wish to, and not because
    he or she is under compulsion or threat.    Saying one will not
    testify because one does not wish to testify is not a redundancy
    or tautology.
    Moreover, the subjective response of an inmate, faced
    with a request that he or she testify at another inmate's
    disciplinary hearing, is likely to be somewhat inchoate.    The
    inmate's reason for not wishing to testify may ultimately be
    simply the desire to avoid becoming entangled in another
    1
    Petitioner does not challenge the refusals of those
    inmates who added words to the effect that they had no knowledge
    of the incident.
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    prisoner's affairs.   Forcing an inmate to come up with an
    explanation that is judged substantial enough would be an unwise
    exercise.   Rather, a hearing officer's focus should be on whether
    the manner of refusal signifies coercion.
    We hold that, as a general rule, when a requested
    inmate witness refuses to testify, a simple statement by the
    inmate on a refusal form that he or she does not want to be
    involved or does not wish to testify is sufficient to protect the
    requesting inmate's right to call that witness.2
    III.
    Petitioner's second argument is based on the hearing
    officer's response to the allegation by one requested inmate
    witness of coercion at the time of the first hearing.   Petitioner
    contends that the hearing officer's inquiry was so inadequate as
    to violate his right to "call witnesses on his behalf" (7 NYCRR §
    254.5 [a]; see 
    Wolff, 418 U.S. at 566
    ).
    When a hearing officer in a prison disciplinary hearing
    is presented with an affidavit in which a refusing inmate witness
    2
    We have no occasion in this appeal to consider the
    different rule applied by the Appellate Division in cases where
    an inmate agrees to testify and later changes his or her mind
    (compare Matter of Abdur-Raheem v Prack, 98 AD3d 1152, 1153 [3d
    Dept 2012], Matter of Hill v Selsky, 19 AD3d 64, 67 [3d Dept
    2005], and Matter of Codrington v Mann, 174 AD2d 868, 869 [3d
    Dept 1991], with Jamison, 119 AD3d at 1306, Tulloch, 90 AD3d at
    1371, and Matter of Tafari v Fischer, 78 AD3d 1405, 1406 [3d Dept
    2010], lv denied 16 NY3d 704 [2011]). It is sufficient for us to
    note that there is no inconsistency between our holding and those
    cases.
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    claims that he or she was coerced into refusing to testify at the
    hearing or in a related proceeding, the hearing officer has an
    obligation to undertake a meaningful inquiry into the allegation.
    As respondent concedes, when there is a "claim of coercion, . . .
    the Hearing Officer ha[s] a duty to inquire further into [the]
    refusal to testify" (Matter of Delgado v Fischer, 100 AD3d 1171,
    1172 [3d Dept 2012]).   Whether such an inquiry will require an
    in-person or telephone interview of the refusing inmate by the
    hearing officer or may instead proceed through the intermediary
    of a suitably briefed correction officer will depend on the
    circumstances surrounding the allegation.
    Here, the hearing officer failed to make a meaningful
    inquiry, either personally or through a correction officer, into
    the allegation of coercion by the refusing inmate witness.
    Notably, the correction officer who had interviewed the refusing
    inmate witness in December 2012 with regard to whether he would
    testify at the rehearing was not the officer who had spoken with
    the inmate in the summer of 2012 with regard to the original
    hearing.   Moreover, there is no evidence in the record that the
    interviewing officer was aware, at the time of the December 2012
    interview, of the affidavit alleging earlier coercion.   It was
    brought to the hearing officer's attention only after the
    correction officer had interviewed the inmate.   The correction
    officer would have had no reason to investigate the allegation
    during the interview or elicit the inmate's recollections with
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    respect to the matter.   In short, the record contains no
    indication that the hearing officer or anyone testifying before
    the hearing officer asked the inmate whether his refusal to
    testify at the rehearing was influenced by a prior threat or
    intimidation.
    In these circumstances, the hearing officer failed to
    determine, in a meaningful manner, whether the inmate's refusal
    to testify at the rehearing was because of intimidation at the
    time of the first hearing.   Respondent notes that the inmate
    witness who alleged intimidation had been transferred from Sing
    Sing to a distant correctional facility by the time of the
    rehearing, making it less likely that any prior threat would
    influence him.   We cannot accept that a transfer from one DOCCS
    facility to another would eliminate the taint of any coercion
    that occurred.   In all, the hearing officer failed to undertake
    the required meaningful effort to determine whether the failure
    to testify was the product of coercion.
    For these reasons, we conclude that a violation of
    petitioner's right to call witnesses occurred and the lower
    courts erred in dismissing his article 78 petition.
    IV.
    The parties do not contest the remedy upon reversal.
    Petitioner seeks the remedy of expungement.   For its part,
    respondent concedes that no fair rehearing is now possible and
    does not seek remittal for a new hearing in the event of a
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    reversal.
    Accordingly, the order of the Appellate Division should
    be reversed, without costs, the petition granted, respondent's
    determination annulled, and respondent directed to expunge all
    references to the proceeding from petitioner's files.
    *   *   *    *   *   *   *   *     *      *   *   *   *   *   *    *   *
    Order reversed, without costs, petition granted, respondent's
    determination annulled and respondent directed to expunge all
    references to the proceeding from petitioner's files.
    Opinion by Judge Fahey. Chief Judge DiFiore and Judges Pigott,
    Rivera, Abdus-Salaam and Garcia concur. Judge Stein took no
    part.
    Decided October 25, 2016
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Document Info

Docket Number: 152

Judges: Fahey, Difiore, Pigott, Rivera, Abdus-Salaam, Garcia, Stein

Filed Date: 10/25/2016

Precedential Status: Precedential

Modified Date: 11/12/2024