Our client was charged with violent conduct, creating a disturbance and gang involvement. At his hearing, after the reporting officer and several prisoners testified, the Hearing Officer found our client not guilty of the charges because there was nothing in the evidence presented at the hearing that identified our client as the person who engaged in the violent conduct; the evidence only showed that our client was walking with another prisoner who was identified as the assailant. Less than an hour later, however, our client was given a hearing on a second misbehavior report charging him with weapon possession and assault regarding the same incident. The misbehavior report was based on “confidential information from an eye witness” who identified our client as the perpetrator of the assault.  We argued, and the court agreed,  that because all of the information in the second report was available prior to the first hearing, the second hearing was barred by res judicata. Citing Gustus v. Fischer, 64 A.D.3d 1034 (2009) the court held that “where two misbehavior reports charge violations concerning a single incident and all of the information necessary to support the charges was available before commencement of first hearing, a hearing on second misbehavior report is barred by doctrine of res judicata.”  DeJesus v. Annucci, Index No 5628-18 (Alb. Co. Sup. Ct.) (November 22, 2017) (Mott, J.)

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