ARTICLE 78 DECISION Each of the six above-named petitioners are inmates in the custody of the New York City Department of Correction (DOC) at Riker’s Island, whose infraction hearings were held in absentia after a hearing officer found that the petitioner had refused to attend his hearing.1 The petitioners were then found guilty of one or more infractions and were penalized with 30 days or more of punitive segregation, along with a $25 disciplinary surcharge. The petitioners have filed these Article 78 petitions arguing that DOC violated their due process in holding the hearings in absentia in the absence of evidence that the petitioners knowingly and voluntarily waived their right to be present. For the reasons stated below, the petitions are granted, the infractions are expunged, and DOC is directed to remit the surcharges to the petitioners. In each of these cases, the petitioner was alleged to have committed a variety of infractions, in violation of DOC rules. As is required by DOC rules and procedures, each was served with a written “Report and Notice of Infraction.” These written notices detail the date and time of the alleged infraction and the basis for the allegation. The forms also notify the inmate that a hearing will be held within a specific time frame, lists the inmate’s rights at the hearing, and the possible consequences if the inmate should be found guilty at the hearing. The notices contain sections for the inmate to indicate if he is requesting an interpreter, a facilitator, or witnesses. A correction officer then signs the notice, certifying that the notice was served on the inmate, another correction officer is noted as the witness, and there is a box for the inmate to sign indicating that he has received the notice. Significantly, the form also notifies the inmate that he has “the right to appear personally [at the hearing], unless [he] waive[s] [his] right to appear, refuse[s] to attend the hearing or appear[s] at the hearing and become[s] disruptive.” With the exception of petitioner Barbosa, these notices indicated that the petitioners refused to sign the form. Barbosa signed the form, acknowledging receipt. In each of these cases, the respective hearing officers proceeded with the infraction hearings without the petitioner being present. At the beginning of each hearing, the hearing officer found that the inmate had refused to attend the hearing. The hearing officers based their findings, not on any testimony, but primarily on logbook entries provided by the correction officer assigned to escort the inmate to the hearing. For each of the petitioners, the hearing officers relied on the following logbook entries (quoted here in relevant part): Martinez: (p. 300, no date, time 1257): “Inmate Martinez, Joel…refused bing hearing, to this writer with C.O…. as the witness. Said inmate was informed that his hearing would proceed without him at this time.” Barbosa: (p. 353, October 28, 2019, time 1915): “Inmate Barbosa Angel…Informed of his hearing. Said inmate refused his hearing and was notified that it would continue without him + still refused.” Griffin: (p. 409, November 25, 2019, time 1415): “C/O…on post to escort inmate Griffin…to hearing. Said inmate refused his hearings and was informed it will continue without him and still refused.” Baez: (p. 9 no date, time 1110): “CO…on post for hearings for…Baez Noel which he refused to appear and was informed that his hearing would proceed in his absence & he continued to refuse.” Tillery: (p.45 January 7, 2020, time 0810): “Inmate Tillery Paris…of his disciplinary hearing at which time he refused. Inmate was informed hearing will proceed without him and he continued to refuse at this time.” In the case of Lattore, two logbook entries were provided to this court as part of this petition and response. Neither logbook page has a date. The logbook entry on page 365, at time 1745, reads “Follow Up” and then lists 5 inmates by cell number and Book and case number and name. After “Lattore” it says “refused.” A second logbook entry, page 366 at 1815 hours, states: “Inmates noted below refused bing hearing to this writer at the below noted times, said inmate was informed that his hearing will proceed without him at this time….” The time noted for Lattore is 1758. Based primarily on these logbook entries indicating a “refusal,” the hearing officers proceeded with the hearings in the absence of the petitioners. Each petitioner was found guilty of various infractions after the hearing in absentia, and were served with a Hearing Report and Notice of Disciplinary Disposition. These reports note that the hearing was held in absentia; under “Summary of Inmate’s Testimony,” each report notes the inmate’s refusal to participate by indicating the logbook entry relied on. The notices also detail the disposition of the charges and the penalties imposed as well as a notice of the right to appeal or file a petition under CPLR Article 78, depending on the sanction imposed. In each of these notices there is a box for the inmate’s signature, indicating that he has received a copy of the notice. The forms for petitioners Baez, Lattore, and Pariis indicate that they refused to sign. The signature lines on the forms for petitioners Barbosa, Griffin, and Martinez are blank. In addition to the logbook entries, respondent attached as part of its response to the writ, copies of a form numbered 6500F and titled, “Infracted Inmate Refusal to Testify.” These forms appear to have been prepared for use by correction officers in informing inmates of their right to attend the hearing and the consequences if they refuse. The language on the form states that the warning is to be read to the infracted inmate. There is a box to check “yes” or “no” once the officer has read the warning and asked the inmate, “do you wish to appear at the disciplinary hearing?” On the forms for each petitioner, the “no” box is checked. In the spaces for “reasons for refusal to testify, if provided,” each form for each petitioner details a date and time that a named correction officer notified the inmate of the hearing, indicates “refused” and the logbook entry. In the space for the inmate’s signature, each form indicates a refusal to sign.2 Although each hearing officer mentions this form during the audio of the hearings, it is not at all clear how or when these forms were used or prepared. Petitioners argue that in each case, respondent failed to meet its burden to show that the petitioners knowingly and voluntarily refused to attend their hearings. They argue that it is insufficient to rely on entries that merely state a petitioner refused to go to the hearing without any information given to the hearing officer as to the circumstances surrounding the purported refusal. Respondent argues that the logbook entries, which are made contemporaneously with a correction officer advising the inmate of the hearing and the consequences of refusing, i.e. that the hearing will take place without him, should be given substantial weight. Respondent also argues that these entries provided the evidence the hearing officer needed to find the inmate knowingly and voluntarily refused to attend the hearing. The court disagrees. “An inmate has a fundamental right to be present at his…disciplinary hearing, unless he…waives such right or refuses to attend.” (Brooks v. James, 105 AD3d 1233, 1234 [3rd Dept 2013] [citations omitted]; Rush v. Goord, 2 AD3d 1185, 1186 [3rd Dept 2003] [citations omitted]). DOC Directive 6500R-F, which is entitled “Inmate Disciplinary Due Process,” and 39 RCNY §1-04(b), the Inmate Rule Book, govern the rights afforded inmates who are subject to pre-hearing detention and disciplinary infraction hearings. “An inmate has the right to appear personally unless this right is waived in writing or the inmate refuses to attend the hearing.” (Directive 6500R-F.III.D.10.a). A disciplinary hearing may be held in absentia only if the inmate is notified of the hearing and he refuses to appear. (39 RCNY §1-04[b][2]; Directive 6500R-F.III.D.12.a). If the hearing is held in absentia, the justification for doing so must be clearly documented in the Adjudicating Captain’s hearing decision. (39 RCNY §1-04[b][2]; Directive 6500R-F.III.D.12.a). To find a knowing and voluntary waiver of the right to be present, there must be evidence in the record to support that an inmate was apprised of the right to be present at the infraction hearing and the consequences of his failure to attend. (Micolo v. Annucci, 152 AD3d 1103, 1104 [3rd Dept 2017] [citing Tafari v. Selsky, 40 AD3d 1172, 1173 [3rd Dept 2007]; Rush v. Goord, 2 AD3d at 1186]). A willful refusal must be found to be a knowing and voluntary waiver of the right to be present. (Brooks v. James, 105 AD3d 1233, 1234 [3rd Dept 2013]). In Brooks v. James (105 AD3d 1233), petitioner told a correction officer who was to escort him to a hearing that he could not wear one of his shoes due to a toe injury. The correction officer deemed this to be a refusal to attend, which he then relayed to the hearing officer who held the hearing in absentia. The Third Department granted the Article 78 petition and annulled the disciplinary finding because the hearing officer “summarily accepted the escort officer’s characterization of petitioner’s conduct as a blatant refusal to attend the hearing.” (105 AD3d at 1234). In so doing, the Court held that the record did not support a finding that petitioner willfully refused or knowingly, voluntarily, or intelligently relinquished the right to attend the hearing. In Micolo v. Annucci (152 AD3d 1103), there was actual witness testimony that the petitioner refused to attend his disciplinary hearing. The respondent also provided a written form signed by an escorting officer attesting that the petitioner was aware of the consequences of his refusal. The form was not signed by the petitioner. Proceeding in absentia, the hearing officer found petitioner guilty of violating certain disciplinary rules, and the Supreme Court dismissed petitioner’s Article 78 petition challenging that determination. In reversing the lower court and granting the Article 78, the Third Department noted that “the correction officer did not elaborate on the reason for petitioner’s refusal, and the Hearing Officer did not inquire.” (Micolo, 152 AD3d at 1104 [citing Brooks v. James, 105 AD3d 1233]). The Court also disregarded the written form that was signed by a correction officer, holding that there was no “indication on the form or anywhere else in the record as to the steps taken to either ‘ascertain the legitimacy of petitioner’s refusal or to inform him of…the consequences of his failure to [attend].’” (Micolo at 1104 [citing Tafari v. Selsky, 40 AD3d 1172, 1173 [3rd Dept 2007] [inmate purportedly refused to leave cell for hearing] [other citations omitted]). Under these circumstances, the Third Department held that it could not conclude that petitioner knowingly, intelligently, and voluntarily forfeited his right to attend the hearing. In each of the cases before this court, it is clear that the logbook evidence relied on by the hearing officer provided nothing but a conclusory notation to indicate that an inmate “refused,” was warned that the hearing would proceed anyway, and that the inmate still “refused.” As in Brooks, the hearing officers in these cases summarily accepted respondent’s characterization that each petitioner refused to appear. As in Micolo, there was no elaboration about the reason for the purported refusals. Nor was there any inquiry by the hearing officers to ascertain the legitimacy of the purported refusals. In a circular fashion, respondent argues that the hearing officers took steps to verify that petitioners actually refused to attend their hearings by relying on the logbook notations from the escorting officers. This is no different than summarily accepting the escort officer’s characterization of petitioner’s absence to be the result of a refusal. (Brooks, 105 AD3d at 1234). Nor does this court give substantial weight to a conclusory assertion in a logbook entry when there are no facts to support it. Under these circumstances, this court finds that respondent has not, and cannot, meet its burden of establishing a knowing and voluntary waiver of the right to attend an infraction hearing where the hearing officer relies on such a conclusory assertion. (Micolo, 152 AD3d at 1104-05; Brooks, 105 AD3d at 1234; see also, Ortiz v. New York City Dep’t of Corr., Sup Ct, Bronx County, February 25, 2008, Newman, J., Index No. 250610/07; Melendez v. New York City Dep’t of Corr., Sup Ct, Bronx County, September 11, 2007, Clark, J., Index No. 75100/07; but cf., Banks v. New York City Dep’t of Corr., Sup Ct, Bronx County, December 18, 2019, Oliver, JHO, Index No. 340537/19 [deeming the logbook entry sufficient]). The “Infracted Inmate Refusal to Testify” forms do not change the result. On the contrary, they may actually contribute to the due process violations. If the hearing officers did not rely on these forms, then they are irrelevant to this analysis except to make it clear that the hearing officers found that petitioners refused to attend their hearings based on nothing more than a logbook entry by a correction officer noting that they purportedly refused. If the hearing officers did rely on these forms, the court notes that they contain virtually no information by which the hearing officer could determine whether the petitioners actually refused to attend their hearings. At best, these forms merely corroborate a conclusory assertion in the same conclusory manner. The Micolo Court refused to rely on a similar form where there was no indication, either on the form, or in the record, “as to the steps taken to…’ascertain the legitimacy of petitioner’s refusal.’” (Micolo, 152 AD3d at 1104). Although the petitioners argue that a hearing officer cannot find a knowing and voluntary waiver without actual testimony from a correction officer, it is not clear that the case law supports that testimony is mandated in every case. What is mandated is that there be evidence of the specific circumstances of a refusal, and not the mere characterization by a correction officer’s logbook entry. Such evidence should include some specifics as to the language or action the inmate used to indicate his refusal to attend the hearing. Did the inmate say the words, “no, I won’t attend,” or, “I don’t want to go;” did the inmate not comply with search procedures so that he could not be transported to the hearing; did the inmate ignore the escorting officer and refuse to acknowledge that he was there to escort him to the hearing; did the inmate say he wanted to go but was scheduled for a clinic visit and could not go to the hearing at that time; was the inmate in the shower or otherwise unavailable at the time but indicated he wished to attend? Certainly, there are inmates who refuse and do not wish to cooperate with the disciplinary procedures at Riker’s Island. Nevertheless, contrary to DOC’s position, the record at these hearings do not establish that the hearing officers took steps to verify whether the petitioners actually refused to attend. To accept this position would require this court to find that the hearing officers verified that petitioners refused simply because a correction officer said they refused. By relying on no more than a conclusory logbook entry without any information as to the particular circumstances, the specific manner or words by which the inmate indicated a refusal, or by which the correction officer deemed the inmate to have refused, respondent cannot meet its burden in these cases to show that each petitioner waived his right to be present, knowingly and voluntarily, as is required before the hearing can proceed. In light of the fundamental due process violation in each case, the expungement of the disciplinary findings is required. (Micolo, 152 AD3d at 1105 [citing Brooks, 105 AD3d at 1234]). Based on the foregoing, the Article 78 applications are granted. It is hereby ORDERED that any finding of guilt or penalty imposed on petitioners Joel Martinez (Infraction No. 1919-19), Jonel Lattore (Infraction No. 3537-19), Angel Barbosa (Infraction No. 3711-19), Larry Griffin (Infraction No. 4123-19), Noel Baez (Infraction No. 4330-19), and Pariis Tillery (Infraction No. 0005-20), are expunged. Respondent is directed to remit the disciplinary surcharges to petitioners. This opinion constitutes the decision and order of the court. SO ORDERED Dated: May 19, 2020
