A New York State Prison inmate retains some basic due process rights despite being imprisoned. An inmate charged with a serious violation faces substantial punishment and should seek the advise of an experienced New York lawyer. When serious violations are alleged against the inmate, a Superintendent’s Hearing will be held. If the inmate is found guilty at the hearing, he must first file an administrative appeal. If his administrative appeal is denied, he can then file an Article 78 petition. An experienced New York attorney should be retained to represent the inmate on his or her Article 78 petition. One due process violation that should result in the reversal and even expungement of a guilty finding is the failure of the prison officials to tape record the hearing. All Superintendents’ Hearings must be “electronically recorded”. 7 NYCRR 254.6(a)(2).

The absence of the tape of the evidence relied upon by a hearing officer in a disciplinary hearing is a violation of the prisoner’s fundamental due process rights. Scott v. Coughlin, 161 Misc.2d 777, 615 N.Y.S.2d 828 (Dutchess Cnty 1994).

The Scott case involved a Tier III Superintendent’s Hearing where Michael Scott was found guilty of assault and was sentenced to 365 days in the Special Housing Unit and six months loss of good time. Scott’s administrative appeals were denied.

Scott then filed an Article 78. While preparing Scott’s Article 78 papers, his attorney learned that several portions of the tape of the hearing were blank. One witnesses’ testimony was cutoff after only two minutes and another inmate’s testimony was not recorded at all. Because of the problem with the tape, prison officials conceded that reversal was required.
The issue in Scott then became whether the guilty findings should be reversed and the case remanded for a new hearing or whether the guilty findings should be reversed and expunged without a remand for a new hearing. The Scott Court agreed with the Petitioner and ordered that (1) the guilty findings be reversed and annulled; (2) all references regarding the proceeding expunged from Petitioner’s departmental and institutional files; and (3) all lost good behavior allowances be restored.

The Court then opined that the failure to record the hearing “violate[d] one of petitioner’s fundamental due process rights and not merely a procedural right.”
If you are an inmate who was found guilty at a prison disciplinary hearing, the very first thing you should do is immediately obtain a copy of the tape of the hearing. If it is blank or if you cannot understand what is being said (inaudible), you should raise this in your administrative appeal. Get a New York lawyer or New York law firm involved in the case as early as possible.

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