Our client was charged with turning off the bars and pushing an officer in the chest. Our client described the incident differently stating that while standing against the cell bars he heard an officer smack a prisoner standing next to him and when he turned to see what was going on, he was pummelled. He asserts that he fell to the floor, where he continued to be assaulted by multiple officers. A CT-scan taken several weeks later showed a fracture of the eye orbit with herniation of fat through the fracture.

At his hearing, our client asserted that he had not received adequate employee assistance. Among other things, he indicated he had asked his assistant to interview all of the inmates on a certain tier so he could determine who had witnessed the incident for which he was charged and select relevant witnesses. The assistant randomly selected six prisoners; five of the six refused to testify and one provided a written statement that he observed an officer push a prisoner. Our client also called another prisoner as a witness at his hearing, but the hearing officer stated that at the time of the incident the witness was restrained face down on the floor, and therefore could not have observed petitioner’s incident. Our client was found guilty of all of the charges against him and received a penalty including 270 days in solitary confinement and six months recommended loss of good time.

PLS sued alleging that our client’s right to employee assistance was violated by the refusal of the assistant to interview all the requested witnesses so our client could select relevant witnesses. PLS also argued that the hearing officer’s decision to deny the requested witness, who was at the scene of the incident, was an improper violation of the right to call witnesses, since there was nothing in the record to support the hearing officer’s conclusion that the witness could not have observed the incident.

By the time the case was argued in court, DOCCS conceded that our client’s rights to call a witness and to assistance may have been violated, and so they focused their argument on the remedy, urging the court to order a new hearing rather than expungement of the charges.

On February 9, 2017, the Appellate Division, Third Department issued a decision in the case holding that our client was prejudiced by the assistant’s failure to interview the requested witnesses and that the Hearing Officer erred in denying the requested witness based on his own speculation regarding the content of the witness’s testimony. The court then addressed the issue of remedy holding that, in this case, expungement of the charges was the proper remedy.  Matter of Nance v. Annucci, #523293 (3d Dep’t Feb. 9, 2017)

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