Opinion
0414082.
Decided February 16, 2005.
LAWRENCE BARTLEY, Auburn Correctional Facility, Auburn, New York.
HON. ELIOT SPITZER, White Plains, New York, Attorney General, State of New York.
By petition dated August 4, 2004, petitioner moves for relief pursuant to CPLR Article 78 for an order annulling and expunging from his record respondent's March 19, 2004 determination which found petitioner guilty of violating prison disciplinary rules. In support of his application, the petitioner contends that: 1) no advanced written notice of the charges was provided to him within 24 hours of the scheduled disciplinary hearing; 2) he was denied his right to a fair and impartial hearing based upon the bias of the hearing officer; 3) he was denied the right to hear and receive all the available evidence against him and to be able to respond to that evidence; 4) he was denied his right to choose his own employee assistant; 5) he was denied his right to timely commencement of the hearing; and 6) no evidence was presented to sustain the charge of possessing contraband.
Respondent has interposed an answer dated December 15, 2004 requesting that this proceeding be transferred to the Appellate Division, Second Department on the ground that the petition raises a substantial evidence question.
FACTUAL BACKGROUND
In an Inmate Misbehavior Report dated March 31, 2004 (the "Report"), petitioner was charged with violating Rules 113.16, 113.23, and 105.12. According to the Report, a copy was served on April 1, 2004 at approximately 6:05 p.m. by Corrections Officer T. France. While the Report clearly indicates that the incident described therein occurred in the cell of one "L. Bartley," the signature acknowledging receipt of the Report appears to be that of an individual by the name of "A. Murphy." This same signature was also affixed to the Inmate Assistant sheet.
A copy of the Inmate Misbehavior Report is attached to the verified answer as Exhibit D.
It is petitioner's contention that the signature is that of one "Antonio Murphy." While the Court agrees that the last name appears to be "Murphy," the Court is unable to decipher the first name.
A copy of the Inmate Assistant sheet is attached to the verified answer as Exhibit N.
The Report alleges that on March 31, 2004, while conducting a search of petitioner's cell, corrections officers found $60 in United States currency, photographs which displayed known unauthorized organizational signs, symbols and jargons, unauthorized correspondence and several other items suspected of constituting contraband.
According to the Sing Sing Correctional Facility Assistant Form, the employee assistant met with petitioner on April 6, 2004, at which time petitioner was provided with copies of the "use of force report," as well as the "unusual incident report." Petitioner signed this form with the notation "Assistant came but I need more info but I'm signing he arrived." At approximately 9:22 a.m. on April 6, 2004, a request was made for an extension of the seven-day time period in which the hearing was to be commenced. This request was granted on April 6, 2004 at approximately 9:32 a.m., with the proviso that the hearing was to be commence by April 7, 2004 and completed by April 14, 2004.
A copy of the Assistant Form is attached to the verified answer as Exhibit O.
A copy of the Disciplinary Hearing Extension Request is attached to the verified answer as Exhibit P.
On April 7, 2004, a Tier III Disciplinary Hearing commenced before Lieutenant Magwood. At the beginning of the hearing, petitioner raised an issue as to the timeliness of the extension on the ground that he was confined on these charges at approximately 8:45 a.m. on March 31, 2004 and the extension was not requested until 9:34 a.m. on April 6, 2004. After some discussion on this issue, Lt. Magwood determined that the extension had been requested in a timely manner and the hearing was then commenced by the reading of the Report into the record. In response to an inquiry as to how the petitioner wished to plead to the charges, petitioner responded "not guilty" to the charges of money unauthorized property (Rule 113.16), contraband (Rule 113.23), and unauthorized activity (Rule 105.12).
A copy of the transcript from the hearing held on April 7, 2004 and continued on April 9, 2004 is attached to the verified answer as Exhibit Q.
Thereafter, petitioner was permitted to present his defense, which consisted of his testimony. During the course of his explanation to Lt. Magwood, petitioner admitted to possessing the currency, but denied possession of any other contraband. Petitioner then renewed his objection as to the timeliness of the hearing and raised the additional objection that he had not been served with a copy of the Report and, therefore he could not "write [his] defense to everything." After considerable discussion regarding petitioner's claim that he had not been served with the Report, the hearing was adjourned to give the hearing officer the opportunity to locate certain items of evidence from the contraband room.
On April 9, 2004, the hearing was continued. It appears from the transcript that the continuation was precipitated by a request of the petitioner for production of the original letter allegedly found in his cell, as opposed to the copy that Lt. Magwood had displayed to him. Based upon the petitioner's renewed objection, it appears that Lt. Magwood was unable to locate the original. After considering the evidence, Lt. Magwood rendered his decision in which he found the defendant guilty of all three charges. Petitioner was informed of his appeal rights and the hearing was completed at approximately 8:25 p.m.
A copy of the Hearing Disposition Rendered is attached to the verified answer as Exhibit S.
The petitioner appealed the determination, which was affirmed on June 16, 2004. A copy of the appeal decision is attached to the verified answer as Exhibit U.
LEGAL ANALYSIS
As stated above, respondent has requested that this matter be transferred to the Appellate Division, Second Department on the ground that the petition raises a substantial evidence question. However, the mere fact that a petition alleges the lack of substantial evidence is not dispositive, for the question of whether an article 78 proceeding must be transferred to the Appellate Division is one to be decided by the court and not the petitioner ( Matter of Save the Pine Bush v. Planning Bd. of City of Albany, 83 AD2d 741, 741, 442 N.Y.S.2d 602 [citations omitted]).
An issue of substantial evidence as specified in CPLR 7803(4) "arises only where a quasi-judicial hearing has been held and evidence taken pursuant to law" ( Id., citing Matter of Colton v. Berman, 21 NY2d 322, 329, 287 N.Y.S.2d 647, 234 N.E.2d 679; see also Matter of Bonded Concrete v. Town Bd. of Town of Rotterdam, 176 AD2d 1137, 1137-1138, 575 N.Y.S.2d 954). Where an agency action is taken without a hearing or where the hearing is discretionary and informational, as opposed to adjudicatory and evidentiary, the substantial evidence test is not at issue and transfer to the Appellate Division is not authorized ( Matter of Hudson Riv. Fisherman's Assn. v. Williams, 139 AD2d 234, 238, 531 N.Y.S.3d 379).
Here, not only has petitioner asserted a substantial evidence claim in the petition, but the disciplinary hearing was quasi-judicial in nature (see Artega v. State, 72 NY2d 212, 532 N.Y.S.2d 57, 527 N.E.2d 1194; McMillan v. State, 181 AD2d 663, 581 N.Y.S.2d 212; Holloway v. State, 285 AD2d 765, 728 N.Y.S.2d 567; Minieri v. State, 204 AD2d 982, 613 N.Y.S.2d 510). However, pursuant to CPLR § 7804(g), a court must transfer to the Appellate Division, Second Department, all Article 78 proceedings in which a substantial evidence issue is raised, unless there are other objections raised that would terminate the proceeding without the need to reach the substantial evidence issue. Although the petition raises a substantial evidence question, the petition also raises other points which are objections that could terminate the proceeding. Consequently, this Court must address those issues prior to any transfer to the Appellate Division, Second Department ( Matter of Duso v. Kralik, 216 AD2d 297, 297-298, 627 N.Y.S.2d 749; Matter of Magwood v. Glass, 240 AD2d 409, 410, 658 N.Y.S.2d 401; Matter of Casalino Interior Demolition Corp. v. State of New York Dept. of Motor Vehicle Traffic Violations Bur. Appeals Bd., 261 AD2d 615, 616, 690 N.Y.S.2d 685; Matter of Carroll v. County of Putnam, 271 AD2d 443, 444, 706 N.Y.S.2d 888; lv. denied 97 NY2d 605, 737 N.Y.S.2d 53, 762 N.E.2d 931).
The first ground raised by petitioner in support of the relief requested in the petition is that he was denied his right to due process in that he was not provided written notice of the charges against him within 24 hours of the scheduled disciplinary hearing.
Although a prisoner's rights "may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for a crime" ( Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 41 L.Ed.2d 935). In the context of a prison disciplinary hearing, "[m]inimal due process requirements are accorded to a prisoner under the circumstances here involved if he is (1) apprised of the charges against him in writing at least 24 hours prior to any determination being made thereon, (2) accorded an opportunity to respond to such charges, and (3) given a written statement from the fact finders as to the evidence relied upon and the reasons for the action taken" ( Gunn v. Ward, 71 AD2d 856, 856, 419 N.Y.S.2d 182, affd. 52 NY2d 1017, 438 N.Y.S.2d 302, 420 N.E.2d 100, citing Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935).
Pursuant to the regulations enacted following federal litigation, "[a]t both Tier II ( 7 NYCRR 253.3) and Tier II ( 7 NYCRR 254.3) inmates must be served with a formal charge in the form of a written misbehavior report, made and signed by an employee who observed the incident, describing with specificity the alleged incident and rule violated; inmates must be advised that no statement they make may be used against them in a criminal proceeding and that they are permitted to call witnesses on their behalf 'provided that doing so does not jeopardize institutional safety or corrections goals'" ( People ex rel. Vega v. Smith, 66 NY2d 130, 138, 495 N.Y.S.2d 332, 485 N.E.2d 997, quoting 7 NYCRR 251-3.1, 251-1.4[b]). In addition, a prisoner so charged may choose an employee, from a list, to assist him in the proceedings ( Matter of Amato v. Ward, 41 NY2d 469, 393 N.Y.S.2d 934, 362 N.E.2d 566).
As noted by the Court of Appeals in Amato, disciplinary proceedings in prisons in New York provide prisoners with procedural protections beyond those mandated by the Supreme Court in Wolff.
In the present case, petitioner maintains, as he did at the Tier III hearing, in his appeal therefrom and in the instant proceeding, that he was never served with the misbehavior report as required by 7 NYCRR 251-3.1. The Report indicates that on April 1, 2004 it was served by Corrections Officer T. France. However, the signature on the document purports to be that of an individual with the last name of "Murphy." The respondent contents that, notwithstanding the fact that the signature reflected on this document is not the petitioner's name, the disciplinary log of the correctional facility indicates that the petitioner was in fact served. In addition, respondent contends that proof of service is further supported by the fact that, upon information and belief, there is no record in the system for the inmate whose name appears on the Report.
A copy of the disciplinary log is attached to the verified answer as Exhibit V.
It appears from the verified answer that the respondent does not contest the petitioner's statement that the name contained on the Report is that of one "Antonio Murphy."
The regulation requiring that a misbehavior report must be served at least 24 hours before a disciplinary hearing ( 7 NYCRR 254.6) was enacted for a reason; to ensure that the procedures used to conduct disciplinary hearings in the New York State prison system comport with federal procedural due process requirements. Under the circumstances presented in this case, the Court is not satisfactorily convinced that this regulation was indeed satisfied.
To arrive at the respondent's conclusion that the petitioner was in fact served would require this Court to make a number of assumptions. Obviously if the facts as asserted by the respondent are correct, an affidavit from the corrections officer who allegedly served the petitioner, made under the penalty of perjury, attesting to the fact that he is familiar with the petitioner and that he in fact personally served the Report on the individual who he knew to be the petitioner, would constitute sufficient documentary evidence upon which this Court could make a determination that the petitioner was provided minimal due process. Short of such an attestation, for this Court to conclude that the petitioner was in fact served with the Report would amount to conjecture.
There being insufficient documentary evidence in the record to refute the allegation by petitioner as to an unconstitutional denial of due process in the conduct of the Tier III disciplinary hearing, it is the finding of this Court that the minimal requirements of due process were not followed and petitioner's rights were violated. Thus, the determination is annulled and all references to the charges underlying the superintendent's proceeding in the petitioner's institutional record are directed to be expunged.
Were the Court to consider the petitioner's remaining points, it would find them to lack merit. The transcript discloses that the hearing was conducted in a fair and impartial manner ( Matter of Melluzzo v. Selsky, 287 AD2d 850, 851, 731 N.Y.S.2d 518; see also Matter fo Martinez v. Scully, 194 AD2d 679, 679, 599 N.Y.S.2d 104[Record established that hearing officer carefully listened to and considered petitioner's arguments and explanations of the incident.]). "In the absence of support in the record for the claim of bias and proof that the outcome of the hearing flowed from the alleged bias," dismissal of the petition on this ground would be warranted. ( Matter of Nieves v. Coughlin, 157 AD2d 943, 944, 550 N.Y.S.2d 203). Nor was the disciplinary hearing improperly extended. Petitioner was confined as of 8:45 a.m. on March 31, 2004. Pursuant to NYCRR 251-5.1(a), petitioner's hearing had to be commenced by 8:45 a.m. on April 7, 2004. Therefore, the request for the extension on April 6, 2004 at 9:22 a.m. and the granting of that request at 9:32 a.m. were timely.
This constitutes the opinion, decision and order and judgment of this Court.