SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

90 

TP 13-01112 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ. 

 

IN THE MATTER OF JARVIS ELDER, PETITIONER, 

V MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE 

DEPARTMENT OF CORRECTIONS AND COMMUNITY 

SUPERVISION, RESPONDENT. 

 

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF

COUNSEL), FOR PETITIONER. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF

COUNSEL), FOR RESPONDENT. 

 

Proceeding pursuant to CPLR article 78 (transferred to the

Appellate Division of the Supreme Court in the Fourth Judicial

Department by order of the Supreme Court, Wyoming County [Mark H.

Dadd, A.J.], entered June 18, 2013) to review a determination of

respondent. The determination found after a tier III hearing that

petitioner had violated various inmate rules. 

It is hereby ORDERED that the determination is unanimously

annulled on the law without costs, the amended petition is granted and

respondent is directed to expunge from petitioner’s institutional

record all references to the violation of inmate rules 116.10 (7 NYCRR

270.2 [B] [17] [i]) and 116.12 (7 NYCRR 270.2 [B] [17] [iii]). 

Memorandum: Petitioner commenced this CPLR article 78 proceeding

seeking to annul the determination, following a tier III disciplinary

hearing, that he violated inmate rules 116.10 (7 NYCRR 270.2 [B] [17]

[i] [stealing]) and 116.12 (7 NYCRR 270.2 [B] [17] [iii] [forgery]),

relating to his alleged forgery of another inmate’s name on certain

disbursement forms. We agree with petitioner that the determination

is not supported by substantial evidence (see generally People ex rel.

Vega v Smith, 66 NY2d 130, 139), and we therefore grant the amended

petition, annul the determination and direct that all references to

the matter be expunged from petitioner’s record. Although a

misbehavior report may by itself constitute substantial evidence of

guilt (see id. at 140-141), here the misbehavior report was based upon

the belief of the sergeant who authored it that petitioner forged

another inmate’s signature on certain disbursement forms, and there is

no indication in the misbehavior report that the sergeant showed the

other inmate the disbursement forms or that the other inmate claimed

that it was not his signature on the forms. There likewise was no
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TP 13-01112 

evidence to that effect presented at the hearing. Although five of

the seven disbursement forms bear the stamp “inmate identification

verified hall capt.,” those correction officers were not identified in

the misbehavior report and their signatures are obscured by the stamp

on the top copy of the triplicate disbursement form. Indeed, we note

that the record establishes that petitioner requested that those

correction officers be identified by using copies in the triplicate

disbursement form and that they be called as witnesses at the hearing. 

The hearing, however, concluded without compliance with petitioner’s

request. Indeed, we note that the Hearing Officer indicated that the

signatures of the hall captains were illegible and thus

unidentifiable, even by those officers in the block to whom the

Hearing Officer had spoken, but nevertheless agreed to “try” to comply

with petitioner’s request to call those witnesses. The record does

not reflect any efforts made by the Hearing Officer to do so. 

We further agree with petitioner that he was denied meaningful

employee assistance and was prejudiced by the inadequate assistance he

received. Thus, at a minimum, petitioner would have been entitled to

a new hearing in any event (see Matter of Bellamy v Fischer, 87 AD3d

1217, 1218). Petitioner objected to the assistance provided to him,

complaining that the assistant did not bring him copies of the

documents being used against him and that the assistant did not want

to help him. “When the inmate is unable to provide names of potential

witnesses, but provides sufficient information to allow the employee

[assistant] to locate the witnesses ‘without great difficulty[,’]

failure to make any effort to do so constitutes a violation of the

meaningful assistance requirement” (Matter of Velasco v Selsky, 211

AD2d 953, 954). The record fails to set forth what efforts, if any,

the employee assistant made to ascertain the names of the correction

officers who signed the disbursement forms and what measures, if any,

the assistant took to secure their presence at the hearing. Under the

circumstances, it cannot be said that “reasonable efforts were made to

locate petitioner’s witnesses” (Matter of Davila v Selsky, 48 AD3d

846, 847). 

Furthermore, petitioner was denied the right to call a witness,

i.e., the other inmate, as provided in the regulations (see Matter of

Barnes v LeFevre, 69 NY2d 649, 650; Matter of Robinson v Fischer, 68

AD3d 1687, 1688). “The hearsay report of a correction officer that a

witness refuses to testify unaccompanied by any reason from the

witness proffered to the [H]earing [O]fficer for such refusal is not a

sufficient basis upon which an inmate’s conditional right to call

witnesses can be summarily denied” (Barnes, 69 NY2d at 650). 

Entered: March 21, 2014 Frances E. Cafarell

Clerk of the Court