Our client was charged with misbehavior. At the start of his disciplinary hearing on January 8th, the hearing officer stated he was going to test the tape recorder. When the recording resumed, it was January 9th and the hearing officer was present with the counsellor who allegedly observed the misbehavior, but our client was not present. The hearing officer stated on the record that our client had refused to attend the hearing. The only indication that our client had refused to attend was a form signed by the Hearing Officer and an employee witness attesting to our client’s alleged refusal. Our client asserted that he did not refuse to attend the hearing, but that after he was told to get ready for the hearing, no staff ever came to escort him to the hearing. At the conclusion of the hearing, our client was found guilty of all charges, and received a penalty including 315 days in solitary confinement and six months recommended loss of good time.
PLS challenged this hearing, as well as another, via an Article 78 where we argued, with respect to this hearing, that our client was denied his right to attend his hearing. On March 2, 2017, the Appellate Division, Third Department issued a decision reversing and expunging the hearing. The court held that there was no evidence in the record to support the conclusion that our client knowingly, voluntarily or intelligently waived his fundamental constitutional right to attend his hearing. The court stated: “Although the form includes instructions to inform an inmate about the nature of the hearing, the charges against him or her and the fact that the hearing will be conducted in the refusing inmate’s absence, the record reflects no information regarding the steps taken to ascertain the legitimacy of petitioner’s refusal or to inform him of his right to attend the hearing and the consequences of his failure to do so.” Wilson v. Annucci, #523541 (3d Dep’t) (March 2, 2017).