In the Matter of Jevon Henry, Appellant,v.Brian Fischer,, Respondent.BriefN.Y.November 14, 2016APL 2014-00269 Court of Appeals of the State of New York In the Matter of the Application of JEVON HENRY, Petitioner-Appellant, -against- BRIAN FISHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent-Respondent. BRIEF FOR RESPONDENT BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General PETER H. SCHIFF Senior Counsel MARCUS J. MASTRACCO Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent The Capitol Albany, New York 12224-0341 Telephone No. (518) 776-2007 Facsimile No. (518) 473-8963 Dated: February 25, 2016 Reproduced on Recycled Paper TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ..................................................................... ii PRELIMINARY STATEMENT ................................................................. 1 FACTS AND PROCEDURAL HISTORY .................................................. 1 A. Misbehavior Report/Disciplinary Hearing ............................. 1 B. Disposition/Administrative Appeal ........................................ 8 PROCEEDINGS/DECISIONS BELOW ................................................... 9 ARGUMENT THE COURTS BELOW PROPERLY FOUND PETITIONER’S PROCEDURAL CLAIMS UNPRESERVED FOR JUDICIAL REVIEW ......................................................................................... 11 A. Petitioner Failed To Preserve His Claim As To The Denial of Documents ............................................................. 16 B. Petitioner Failed To Preserve His Claim As To The Denial of Officer Faulkner’s Testimony................................ 19 C. Petitioner Failed to Preserve His Claim As to Inmate Kaufman ................................................................... 23 CONCLUSION ........................................................................................ 25 i TABLE OF AUTHORITIES CASES PAGE Berner, Matter of v. Goord, 262 A.D.2d 881 (3d Dep’t 1999) ..................................................... 13 Blanco, Matter of v. Selsky, 45 A.D.3d 679 (2d Dep’t 2007) ....................................................... 12 Brown, Matter of v. Coughlin, 165 A.D.2d 935 (3d Dep’t 1990) ................................................... 12n Carter, Matter of v. Goord, 8 A.D.3d 771 (3d Dep’t 2004) ......................................................... 13 Corona, Matter of v. New York State Dept. of Correctional Servs., 2 A.D.3d 1118 (3d Dep’t 2003) ....................................................... 13 Correnti, Matter of v. Prack, 93 A.D.3d 970 (3d Dep’t 2012) ....................................................... 18 Geraci, Matter of v. Annucci, 131 A.D.3d 767 (3d Dep’t 2015) ..................................................... 12 Herman, Matter of v. Blum, 54 N.Y.2d 677 (1981) ...................................................................... 12 HSBC Bank USA, N.A. v. Ashley, 104 A.D.3d 975 (3d Dep’t), lv. dismissed, 21 N.Y.3d 956 (2013) ..... 6 Hudson Riv. Val., LLC v. Empire Zone Designation Bd., 115 A.D.3d 1035 (3d Dep’t 2014) ................................................... 12 Ifill, Matter of v. Fischer, 79 A.D.3d 1322 (3d Dep’t 2010) ..................................................... 14 ii TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE Irby, Matter of v. Kelly, 161 A.D.2d 860 (3d Dep’t 1990) ..................................................... 21 Levi, Matter of v. Coughlin, 185 A.D.2d 345 (2d Dep’t 1992) ................................................... 12n Morales, Matter of v. Fischer, 89 A.D.3d 1346 (3d Dep’t 2011) ..................................................... 19 Pabon, Matter of v. Goord, 6 A.D.3d 833 (3d Dep’t 2004) ......................................................... 18 People v. Tyler, 40 N.Y.2d 1065 (1976) .................................................................... 14 Reeves, Matter of v. Goord, 248 A.D.2d 994 (4th Dep’t), lv. denied, 92 N.Y.2d 804 (1998) ...... 12n Shakoor, Matter of v. Coughlin, 165 A.D.2d 917 (2d Dep’t 1990), appeal dismissed, 77 N.Y.2d 866 (1991) .................................................................... 12n Sowa, Matter of v. Looney, 23 N.Y.2d 329 (1968) ...................................................................... 12 Town of Oyster Bay v. Kirkland, 19 N.Y.3d 1035 (2012), cert. denied, 133 S. Ct. 1502 (2013) ........... 6 Vaughn, Matter of v. Orlando, 79 A.D.3d 1048 (2d Dep’t 2010) ..................................................... 14 Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52 (1978) ................................................................... 12,19 iii TABLE OF AUTHORITIES (cont’d) CASES (cont’d) PAGE Wilson, Matter of v. Fischer, 124 A.D.3d 1384 (4th Dep’t 2015) ................................................... 12 YMCA v. Rochester Pure Waters Dist., 37 N.Y.2d 371 (1977) ...................................................................... 22 STATE STATUTES C.P.L.R. article 78 ................................................................................... 1,9,11 § 7804(f) ........................................................................................ 16n STATE RULES AND REGULATIONS 7 N.Y.C.R.R. § 270.2(B)(1)(i) ................................................................................ 2n § 270.2(B)(1)(iv) .............................................................................. 2n § 270.5(ii) ........................................................................................ 2n § 270.5(iv) ....................................................................................... 2n § 270.6(iv) ....................................................................................... 2n § 270.14(i) ....................................................................................... 2n iv PRELIMINARY STATEMENT In this proceeding pursuant to C.P.L.R. article 78, petitioner challenges on procedural grounds a determination by the Department of Corrections and Community Supervision (“DOCCS”) finding him guilty of prison misconduct. The Appellate Division, Third Department, affirmed Supreme Court’s judgment granting respondent’s motion to dismiss the proceeding on the ground that petitioner failed to preserve his claims for judicial review. Both courts found that petitioner failed to preserve his claims by adequately raising them at his hearing, when they could have been addressed. This Court should affirm, for the reasons set forth below. FACTS AND PROCEDURAL HISTORY A. Misbehavior Report/Disciplinary Hearing In a misbehavior report dated April 24, 2012, Offender Rehabilitation Coordinator Iarusso charged petitioner with multiple violations of prison rules prohibiting assaulting another inmate (Rule 100.10), fighting (Rule 100.13), engaging in violent conduct (Rule 104.11), creating a disturbance (104.13), participating in gang activity (Rule 105.13), and possessing a weapon (Rule 113.10).1 (A39.2) Coordinator Iarusso reported that, following an investigation, he determined that petitioner, a Blood gang member, assaulted and cut inmate Williams, a member of a rival gang, with a sharp metal-type weapon in the N-1 dorm on April 22, 2012 (A39). As a result of the assault, inmate Williams received cuts on multiple parts of his body resulting in injuries that required treatment at an outside hospital. Other inmates associated with the two gangs were also involved in the assault, and Coordinator Iarusso named those inmates in his report. Coordinator Iarusso further stated that his findings were based on verbal and written statements he obtained through confidential sources that he found to be credible (A39). A hearing was convened on April 27, 2012, before Commissioner’s Hearing Officer Gutwein (A40). The hearing officer specifically advised petitioner to raise any procedural objections promptly at the hearing 1 The prison rules are codified at N.Y. Comp. Codes R. & Regs. tit. 7 (hereinafter “7 N.Y.C.R.R.”) §§ 270.2(B)(1)(i), (1)(iv), 5(ii), 5(iv), 6(iv), and 14(i). 2 Parenthetical references to “A__” refer to pages in the Appendix for Petitioner-Appellant. 2 (A40). Petitioner pleaded not guilty to the charges, claimed that he was neither involved in the incident nor associated with any gang members, and requested certain documents and witnesses. For documents, petitioner requested copies of the entry from the facility’s log book describing the incident, the Unusual Incident (“UI”) report of the incident, and any to/from memoranda generated in connection with the incident (A42, 45-46, 54). The hearing officer determined that the facility’s log book contained no entry from the incident, and thus that there was no document to provide (A54). The hearing officer denied the UI report and deferred decision as to any to/from memoranda (A54). In denying the UI report, the hearing officer specifically explained that he did not believe petitioner was entitled to the report because petitioner was not named in it (A54). The hearing officer then asked petitioner, “[D]o you understand that?” (A54), and petitioner responded, “Yes sir” (A54). Petitioner thus neither objected to the hearing officer’s reasoning on the issue nor suggested anything that the hearing officer might have misunderstood or overlooked (A54). Instead, petitioner made a different objection. He argued that Rule 105.13, which prohibits 3 participating in gang activity, is not a valid, published rule (A55). The hearing officer acknowledged the argument and asked petitioner if he had anything else (A54). Petitioner responded that he was “objecting to the whole hearing” on the ground that he was not guilty and had witnesses to prove his innocence (A54). For witnesses, petitioner asked to call two correction officers as character witnesses, claiming they could verify that he did not generally associate with gang members (A42-43, 53, 56). The hearing officer called one of them, Correction Officer Lambertson. The officer testified that he was an officer in the N-1 dorm and was vaguely aware of the incident (A52). When asked whether he was “aware as to whether [petitioner] associates with” the gang members listed in the misbehavior report, Officer Lambertson responded, “No” (A53). And when asked whether he was “aware as to whether [petitioner] was around the incident at the time it occurred,” he stated, “I am not aware of that” (A53). In light of Officer Lambertson’s testimony, the hearing officer asked petitioner whether it was still necessary to call the other officer, Correction Officer Faulkner (A56). When the hearing officer asked 4 petitioner what he wanted Officer Faulkner to say that Officer Lambertson had not already said, petitioner responded, “Nothing” (A56). He said he planned to ask Officer Faulkner the same question he had asked Officer Lambertson because he wanted a second officer to verify that he did not generally associate with the inmates involved in the incident (A56). But he did not suggest that Officer Faulkner would be able to provide testimony that was different from or more specific than that provided by Officer Lambertson. Indeed, when the hearing officer again asked “[w]hat would be the purpose of calling [Officer Faulkner] as a witness then if it would be similar to the testimony given by Officer Lambertson?” petitioner simply stated that he thought “the more [witnesses] the better in my favor” (A56). The hearing officer thereafter denied Officer Faulkner as a witness, explaining that the officer’s testimony would be redundant (A58). Petitioner did not question the ruling or present any additional information or argument. Petitioner also asked to call five inmate witnesses. The hearing officer ultimately called three of them (A48-50, 50-52, 57-58). A fourth requested inmate witness, inmate Kaufman (identified as “N-1-13 5 bottom,” or sometimes just “N-13”), had informed petitioner’s pre-hearing assistant that he did not wish to testify (A115). Petitioner nevertheless told the hearing officer that he wished to call him (A45, 56.) Apparently relying on the pre-hearing assistance form, the hearing officer reminded petitioner that the requested witness had refused (A58). Petitioner then asked, “you say he refused” (A58)? When the hearing officer confirmed that he had, petitioner stated, “Alright” (A58). The fifth requested witness, inmate Burton, similarly informed petitioner’s pre-hearing assistant that he did not wish to testify (A115). Because petitioner has never argued that this fifth witness was improperly denied, either in this Court or the Appellate Division, he has abandoned any claim as to him. See Town of Oyster Bay v. Kirkland, 19 N.Y.3d 1035, 1038 (2012), cert. denied, 133 S. Ct. 1502 (2013); HSBC Bank USA, N.A. v. Ashley, 104 A.D.3d 975 n.* (3d Dep’t), lv. dismissed, 21 N.Y.3d 956 (2013). Before concluding the hearing, the hearing officer allowed petitioner an opportunity to state any objections on the record. In response, petitioner asserted that he had not been involved in the 6 incident and once again asserted broadly that he was objecting “to the whole hearing” (A58-59). Petitioner also repeated his specific objection to Rule 105.13, and the hearing officer noted petitioner’s objection for the record (A59). The hearing officer then provided petitioner with a form (#2176) documenting his decision to hear confidential testimony from Officer Iarusso and explaining that the to/from memoranda petitioner had requested were also confidential and were being denied on that basis (A59, 122-123). The hearing officer then reiterated his reasons for not providing the requested log book entry (there was none), denying the UI report (petitioner was not listed in the report), and denying Officer Faulkner as a witness (redundancy) (A59, 122). When asked if he understood these reasons, petitioner responded affirmatively (A59-60). Once again, petitioner did not object or otherwise alert the hearing officer to any concerns about these rulings. The hearing officer concluded by asking petitioner if he had anything else to add (A60). Petitioner argued that the very fact that his name was not mentioned in the UI report showed his lack of involvement in the assault (A60). Petitioner then confirmed that he had 7 nothing else to present before the hearing officer adjourned the hearing to render a disposition (A60). B. Disposition/Administrative Appeal The hearing officer found petitioner guilty of the charges and imposed a penalty of 24 months in a Special Housing Unit (“SHU”) with a corresponding loss of package, commissary and telephone privileges (A60, 64). The hearing officer also recommended a loss of 24 months of good time (A60, 64). On administrative appeal, petitioner argued, among other things, that the hearing officer had improperly denied documents, namely the relevant entry from the facility’s log book, the UI report and the to/from memoranda, and that the hearing officer had also failed to make a proper inquiry into inmate Kaufman’s refusal to testify. Petitioner did not assert—and thus did not administratively exhaust—a claim that the hearing officer had improperly denied Officer Faulkner as a witness (A66-73). The Commissioner’s designee affirmed the determination upon administrative review (A74). 8 PROCEEDINGS/DECISIONS BELOW Petitioner commenced the underlying C.P.L.R. article 78 proceeding seeking judicial review of the disciplinary determination. He raised three procedural claims. First, he challenged the denial of documents, lumping together the log book entry, the UI report, and the to/from memoranda and urging for the first time that these documents might have provided him with the names of other potential witnesses (A102). Petitioner had made no such suggestion at the hearing. To the contrary, because petitioner was asserting a lack of involvement in the incident altogether, he had affirmatively used as a defense the fact that he was not mentioned in the UI report. And petitioner never questioned the hearing officer’s determination that no log book entry existed for the incident. Second, petitioner challenged the hearing officer’s decision to deny Officer Faulkner as a witness (A104-105). For that purpose, he now suggested that “Officer Faulkner might have been able to provide different, relevant, exculpatory evidence had he been called to testify” (A100), although he made no such suggestion at the hearing. Third, petitioner argued the hearing officer improperly denied his request to call inmate Kaufman as a witness, arguing that the hearing officer 9 should have inquired further into inmate Kaufman’s purported refusal to testify (A103-104). Respondent filed a pre-answer motion to dismiss the proceeding based on petitioner’s failure to preserve his procedural claims for judicial review. Respondent’s motion annexed the transcript from the hearing and some, but not all, of the other documents from the administrative record of the proceeding. Supreme Court, Albany County (McGrath, J.), granted the motion and dismissed the petition (A24-27). After reviewing and summarizing the facts and petitioner’s arguments, the court determined that petitioner failed to preserve his procedural claims by raising adequate objections at the hearing (A25-26). Indeed, when told that he would not get one of his inmate witnesses, petitioner had said, “Alright” (A25). The Appellate Division, Third Department, unanimously affirmed (A15-16). This Court granted petitioner leave to appeal on October 28, 2014. 10 ARGUMENT THE COURTS BELOW PROPERLY FOUND PETITIONER’S PROCEDURAL CLAIMS UNPRESERVED FOR JUDICIAL REVIEW The Appellate Division correctly affirmed the dismissal of this article 78 proceeding based on petitioner’s failure to preserve his procedural claims. The Court should therefore affirm. Respondent is not arguing, as petitioner contends, that to preserve an article 78 challenge to a hearing officer’s ruling denying a requested document or witness, the inmate always must “state a formal exception to the ruling denying his request” (Br. at 12). But where the inmate specifies a reason for a request, or where the hearing officer makes clear a specific reason for denying a request, the inmate cannot later complain that the request was improperly denied for a different reason. Petitioner thus cannot make a request for one reason, acquiesce to the hearing officer’s decision to deny the request, and then suggest error at a later time based upon a different reason for the request. The principle that respondent urges here is not, as petitioner argues (Br. at 12-16), a matter of mere formality. It serves to prevent inmates from presenting after-the-fact justifications for their requests 11 that their hearing officers had no reason to consider, and thereby unnecessarily prolonging the administrative process. To preserve a procedural claim for judicial review, litigants must generally present their claims to the agency at a time when any alleged deficiencies can be corrected. See Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57 (1978); Matter of Herman v. Blum, 54 N.Y.2d 677 (1981); Matter of Sowa v. Looney, 23 N.Y.2d 329, 333 (1968); Matter of Hudson Riv. Val., LLC v. Empire Zone Designation Bd., 115 A.D.3d 1035, 1037 (3d Dep’t 2014). The Appellate Division has consistently applied this principle to inmate disciplinary cases. Matter of Geraci v. Annucci, 131 A.D.3d 767 (3d Dep’t 2015); Matter of Wilson v. Fischer, 124 A.D.3d 1384 (4th Dep’t 2015); Matter of Blanco v. Selsky, 45 A.D.3d 679 (2d Dep’t 2007).3 It is this principle on which respondent here relies, as more fully demonstrated below. 3 Indeed, the courts have done so for decades. Matter of Reeves v. Goord, 248 A.D.2d 994 (4th Dep’t), lv. denied, 92 N.Y.2d 804 (1998); Matter of Brown v. Coughlin, 165 A.D.2d 935 (3d Dep’t 1990); Matter of Levi v. Coughlin, 185 A.D.2d 345 (2d Dep’t 1992); Matter of Shakoor v. Coughlin, 165 A.D.2d 917 (2d Dep’t 1990), appeal dismissed, 77 N.Y.2d 866 (1991). 12 Petitioner’s waiver arguments to the Court are thus not relevant. The question here is not whether petitioner knowingly and voluntarily waived his conditional rights to documents and witnesses. Indeed, he exercised those conditional rights by requesting the documents and witnesses. The question is whether he preserved the procedural claims he now seeks to raise by exhausting his remedies at the administrative level, as opposed to formulating arguments after the fact as to why the hearing officer should have taken additional steps to provide him with the documents or witnesses requested. To be sure, in cases where inmates failed to raise claims in time for them to be corrected at the administrative level, courts have sometimes characterized the resulting forfeiture as a “waiver.” See, e.g., Matter of Carter v. Goord, 8 A.D.3d 771 (3d Dep’t 2004) (“petitioner failed to request a copy of the witness refusal form, thus waiving any claim that he was improperly denied same”); Matter of Corona v. New York State Dept. of Correctional Servs., 2 A.D.3d 1118 (3d Dep’t 2003) (petitioner’s failure to raise issues at administrative level were “waived and are not preserved” for court’s review”); Matter of Berner v. Goord, 262 A.D.2d 881 (3d Dep’t 1999) (“[a]ny challenges pertaining to the timely service of the misbehavior 13 report were waived by petitioner’s failure to raise them on administrative review”). But these courts used the term generically to mean that the inmates had failed to preserve their ability to raise their claims at a later time; they were not holding that the inmates had knowingly and intentionally relinquished the rights at issue. Compare Matter of Vaughn v. Orlando, 79 A.D.3d 1048, 1050 (2d Dep’t 2010) (determination annulled “where the petitioner was not provided with assistance and the record does not reflect that he made a knowing and intelligent waiver of this right”); Matter of Ifill v. Fischer, 79 A.D.3d 1322, 1323 (3d Dep’t 2010) (determination annulled “[i]n the absence of a knowing and voluntary waiver by petitioner of his right to attend the hearing”). Contrary to petitioner’s contention (Br. at 12-16), an appellant does not preserve every conceivable challenge to a trial judge’s or hearing officer’s ruling on a request, simply by making the request. People v. Tyler, 40 N.Y.2d 1065 (1976), is illustrative. There, a witness subpoenaed by the defendant asserted, outside the presence of the jury, his privilege against self-incrimination and refused to testify. He did so, even though he had previously admitted to his participation in the 14 crime upon which the defendant was charged, and indeed had pleaded guilty to it. Without objection from defense counsel, the trial court ruled that the defendant could not call the witness to testify. The court “then denied defense counsel’s request that the jury be informed both of the witness’ plea and of the reason for his nonappearance at trial.” Id. at 1066. On appeal, the defendant did not contend that the refusal of the trial court to inform the jury as requested was error, but instead attempted to make a different argument, “that because the witness had previously pleaded guilty the trial court erroneously allowed him to assert his privilege against self- incrimination.” Id. This Court held that because “of the failure of defendant to object to the trial court’s recognition of the claim of privilege or otherwise then to raise any question as to the witness’ right to assert such privilege, the error, if any, was not preserved for appellate review.” Id. Similarly here, petitioner failed to preserve his procedural claims for judicial review because he failed to alert the hearing officer to his 15 concerns at the hearing, when they could have been promptly addressed.4 A. Petitioner Failed To Preserve His Claim As To The Denial of Documents Preliminarily, while petitioner continues to refer to the hearing officer’s “denial” of the log book entry (e.g., Br. at 7, 8), he has never questioned the hearing officer’s determination that no such log book entry existed. In fact, the hearing officer did not deny the document. He simply reported that there was no log book entry to provide, and the petition provides no basis to question that report. Petitioner thus cannot state a claim as to the log book entry. As for petitioner’s remaining document requests, petitioner failed to register any complaint when the hearing officer specifically explained his reason for denying petitioner’s requests for the UI report and any 4 If the Court disagrees as to any of petitioner’s claims, however, the most that petitioner can obtain—and indeed the only relief that petitioner has requested (see App. Div. Br. at 13)—is a remand so that respondent can file an answer and return pursuant to C.P.L.R. § 7804(f) and petitioner’s claims can be considered on the merits, along with the relief warranted, if any. And should petitioner ultimately prevail on any of his procedural claims, the most that he could obtain would be a remittal to DOCCS for a new hearing. 16 to/from memoranda. Indeed, when the hearing officer informed petitioner that he was denying the UI report on the basis that it did not name petitioner, petitioner not only failed to complain (A54), but affirmatively used the information to bolster his defense, arguing it served to show his lack of involvement in the assault (A60). And when the hearing officer informed petitioner that the to/from memoranda were confidential, petitioner simply said that he understood the concern, voicing no disagreement at all (A59). At no time did petitioner suggest at the hearing, as he does now, that the hearing officer’s stated reasons did not address his concerns because he might have nonetheless been able to use the UI report and any non-confidential parts of the to/from memoranda to find additional witnesses. If petitioner had made that argument at his hearing, the hearing officer could have considered (a) whether the UI report provided any names that petitioner did not already have by way of their identification in the misbehavior report, and (b) whether any such additional names could be disclosed without jeopardizing the safety and security of the facility. But the hearing officer was not required to intuit the reason that petitioner now gives for the document request. The 17 courts below thus properly held that petitioner failed to preserve for judicial review his challenge to the hearing officer’s decision to deny him access to these requested documents. Petitioner argues that by raising the document issue for the first time on administrative appeal, the claim is adequately preserved (Br., Point III), but he is mistaken. To be sure, certain claims do not arise until after a hearing officer has rendered a disposition—the excessiveness of a penalty, for example—and thus can only be raised for the first time on administrative appeal. Here, however, the hearing officer’s explanation for denying the documents at issue assumed a particular reason for the documents requested, namely that they might provide a contradictory description of petitioner’s actions. If in fact petitioner sought the documents for the reason he now presents, then he needed to speak up at the hearing in order to give the hearing officer an opportunity to correct any deficiency. See Matter of Correnti v. Prack, 93 A.D.3d 970, 971 (3d Dep’t 2012) (noting that preservation generally requires petitioner to raise claims both at hearing and on administrative review); Matter of Pabon v. Goord, 6 A.D.3d 833 (3d Dep’t 2004) (claim not preserved where 18 raised only on administrative appeal and not at hearing); see also Matter of Morales v. Fischer, 89 A.D.3d 1346 (3d Dep’t 2011) (issues that must be raised at hearing for preservation purposes are limited to those issues that could have been corrected at hearing if raised). Such a rule prevents an inmate with seizing on an after-the-fact justification for a document request and is thus most consistent with the underlying goals of the doctrine of administrative exhaustion, which include affording the agency the opportunity to correct deficiencies and thereby alleviate the need for judicial intervention. See generally Watergate II Apts., 46 N.Y.2d at 57. B. Petitioner Failed To Preserve His Claim As To The Denial of Officer Faulkner’s Testimony Petitioner also failed to preserve for judicial review his challenge to the hearing officer’s refusal to call Officer Faulkner as a witness. Petitioner argues here that the hearing officer improperly denied Officer Faulkner as a witness because Faulkner would not necessarily have been redundant, but might have provided testimony different from that provided by Officer Lambertson. 19 Petitioner should be precluded from challenging the hearing officer’s ruling on the specific reasoning he now advances because he articulated different reasoning for requesting Officer Faulkner’s testimony at the hearing. Specifically, petitioner requested Officer Faulkner along with Officer Lambertson because he believed the cumulative testimony of the officers would support his claim that he did not associate with gang members. From the transcript, Officer Lambertson’s testimony may appear ambiguous as to whether he had actual knowledge that petitioner did not associate with the other inmates involved in the incident (A52-53), but it does not appear that petitioner or the hearing officer viewed it as such at the time (see A56). To the contrary, both seemed to have viewed the officer’s testimony as favorable toward petitioner. Accordingly, when petitioner reiterated his request for Officer Faulkner, the hearing officer repeatedly asked petitioner to explain what information he believed the officer could provide that Officer Lambertson had not already given (A56). Petitioner suggested no such information. He never suggested that Officer Faulkner might have different or more specific information to offer. To the contrary, he 20 affirmatively stated that he wished to call Officer Faulkner precisely because his testimony would be cumulative, stating “the more [witnesses] the better in my favor,” and he would “be calling witnesses all day,” if allowed to do so (A56). And even near the end of the hearing, when petitioner was afforded a second opportunity to voice any disagreement with the hearing officer’s ruling to deny Officer Faulkner as a witness, petitioner again failed to do so (A59-60). Having articulated a particular reason for his witness request—a desire to present cumulative testimony—petitioner should not now be permitted to challenge the hearing officer’s decision to deny the witness on the basis of a different reason, articulated only after the fact. If petitioner had suggested at the hearing that Officer Faulkner would provide “different, relevant, [and] exculpatory evidence,” as petitioner later alleged in his petition (A100), the hearing officer could have evaluated the relevance of Officer Faulkner’s testimony on this basis. See Matter of Irby v. Kelly, 161 A.D.2d 860 (3d Dep’t 1990) (similarly faulting petitioner for not sufficiently articulating claimed errors at the hearing when they could have been corrected). Allowing petitioner to come up with an after-the-fact reason for his witness request would 21 undermine the goals of the administrative exhaustion requirement, discussed above. Indeed, petitioner did not even challenge the hearing officer’s refusal to call Officer Faulkner as a witness on administrative appeal, either in the papers he filed on his own (A66-70), or in the papers that Prisoners’ Legal Services of New York thereafter filed on his behalf (A71-73). In both documents, petitioner raised a different witness issue, arguing that the hearing officer erred by denying inmate Kaufman as a witness. Petitioner thus failed to exhaust his administrative remedies as to the challenge, a failure that provides an additional reason to preclude him from raising the challenge now. “A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the [agency] of an opportunity to consider the matter, make its ruling, and state the reasons for its action.” YMCA v. Rochester Pure Waters Dist., 37 N.Y.2d 371, 371 (1977) (internal quotations omitted). 22 C. Petitioner Failed to Preserve His Claim As to Inmate Kaufman The hearing officer does not appear to have affirmatively denied a request by petitioner to call inmate Kaufman as a witness. According to petitioner’s pre-hearing assistance form, inmate Kaufman indicated he did not wish to testify. At the hearing, after petitioner asked the hearing officer about the inmate several times, the hearing officer reminded petitioner of the inmate’s earlier refusal. So when petitioner then asked, “you say he refused?” the hearing officer simply confirmed that he had (A58). Given these facts, petitioner needed to do more to make clear that he wanted to call inmate Kaufman to the hearing, notwithstanding Kaufman’s earlier indication to the pre-hearing assistant that he did not wish to testify. After all, an inmate witness’s earlier refusal to testify may signify that the inmate witness does not wish to offer testimony that could be prejudicial to the defense. A decision to seek to call such an inmate as a witness is therefore a strategic one that must be made clear to the hearing officer. To make his determination clear here, petitioner simply needed to alert the hearing officer that he wanted the officer to inquire further into the refusal. Petitioner could have accomplished this by asking a 23 question as simple as “Are you sure?” or “Can you check on that?” Instead, petitioner reassured the hearing officer that he was “alright” (A58) on the issue. He thus failed adequately to advise the hearing officer that he wished to try to call the inmate as a witness, notwithstanding the earlier refusal reported by his pre-hearing assistant. In sum, petitioner’s apparent acquiescence reasonably signaled to the hearing officer that petitioner had no further concerns. By failing to place the hearing officer on notice that he remained dissatisfied on the issue, petitioner failed to preserve the claim for judicial review. 24 CONCLUSION The Court should affirm the order of the Appellate Division. Dated: Albany, New York February 25, 2016 BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General PETER H. SCHIFF Senior Counsel MARCUS J. MASTRACCO Assistant Solicitor General of Counsel Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent By: __________________________ MARCUS J. MASTRACCO Assistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 Telephone (518) 776-2007 Reproduced on Recycled Paper 25 Marcus J. Mastracco