In the Matter of Jevon Henry, Appellant,v.Brian Fischer,, Respondent.BriefN.Y.Nov 14, 2016518064 NEW YORK STATE SUPREME COURT APPELLATE DIVISION: THIRD DEPARTMENT ------------------------------------------------------------------------------ In the Matter of the Application of JEVON HENRY, Petitioner-Appellant, Index No.: 6539-12 6386-12 For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- BRIAN FISCHER, Commissioner, New York State Department of Corrections and Community Supervision, Respondent. APPELLANT PETITIONER’S REPLY BRIEF MAIN STREET LEGAL SERVICES, INC. Julia P. Kuan, Of Counsel Donna H. Lee, Of Counsel Lindsay Adams, Law Student Intern 2 Court Square Long Island City, N.Y. 11101 (718) 340-4300 Attorneys for Petitioner-Appellant ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, N.Y. 12224 (518) 474-7201 Attorneys for Respondent APL-2014-00269 1 PRELIMINARY STATEMENT The only issue currently before the Court is whether Petitioner Jevon Henry adequately objected to the Hearing Officer’s failure to provide him with documentary evidence necessary for his defense, and to the improper denial of witnesses during his prison disciplinary hearing. The hearing transcript reveals that Mr. Henry’s explicit objections, viewed in the context of (1) his repeated requests for the documents and witnesses and (2) the timing of these objections, shortly after the Hearing Officer’s denials, sufficiently preserved these claims for judicial review. Accordingly, the Supreme Court’s order granting Respondent’s motion to dismiss, and dismissing Mr. Henry’s Article 78 Petition should be reversed, and this matter should be remanded for consideration on the merits of Mr. Henry’s claims. ARGUMENT Mr. Henry unequivocally and specifically requested the Unusual Incident (“UI”) Report, the To-From Report, and the Log Book, as well as the testimony of an inmate witness who refused to testify, and of Officer Faulkner. He reiterated these requests multiple times. The fact that he understood that the Hearing Officer chose to deny his requests is not tantamount to Mr. Henry’s withdrawing these requests. To the contrary, after the Hearing Officer’s various denials, Mr. Henry explicitly objected to the “whole hearing” – once after the documents were denied, and a second time after the witnesses were denied. (R. 38, 40). The purpose of requiring timely objections is so that the hearing officer has notice of and an opportunity to remedy potential errors in the hearing process. Respondent should not be permitted to inoculate a hearing officer’s decision-making from judicial review simply because a pro se prisoner appropriately acquiesced with a hearing officer’s ruling. In this case, although Mr. Henry did not speak in 2 lawyerly sound bites, he clearly objected shortly after the Hearing Officer’s decisions to deny the requested documents and witnesses, thus preserving his right to judicial review of these issues. Mr. Henry explicitly requested the UI Report, To-From Report, and Log Book on April 27, 2012, (R. 25), and again on May 22, 2012. (R. 27). He also, more generally, referred a third time to the fact that he had not received the documents he had requested. (R. 28). On May 29, 2012, after the Hearing Officer denied Mr. Henry’s request for these three specifically identified documents, the dialogue between the two of them provides sufficient evidence of Mr. Henry’s on-going objection to the denial of these documents, and preserves this issue for judicial review: H/O Gutwein: “And with regard to the log book, there is no log book entry with regard to the alleged incident in the report Mr. Henry, anything else?” Inmate Henry: “You said I can’t get the U.I And the to-from right?” H/O Gutwein: “It’s already been stated that their [sic] not listed on the unusual incident report, therefore you wouldn’t be permitted (inaudible) do you understand that?” Inmate Henry: “Yes sir. . . .” H/O Gutwein: “Anything else Mr. Henry?” Inmate Henry: “Um, I’d just like to state that um I feel like I’m wasting you’re [sic] time and myself with this ticket. (inaudible) incident reports, log book is no um there’s no log book of the incident, you know you got um somebody sayin’ I was involved in something that I wasn’t involved in. I got numerous people saying that I had no involvement, I even got one person saying that he saw what went down and he know’s [sic] who’s involved. I got officers saying that I have no association with these young dudes. . . . .” 3 H/O Gutwein: “You’re [sic] objection is noted for the record. Mr. Henry, anything else?” Inmate Henry: “’Cuse me?” H/O Gutwein: “You’re [sic] objection with regards to rule #105/13 is noted for the record, anything else Mr. Henry?” Inmate Henry: “I’m objecting to the whole hearing.” (R. 37-38). This portion of the hearing transcript illustrates that Petitioner adequately preserved the issue of Respondent’s failure to provide documentary evidence at the disciplinary hearing. The fact that Mr. Henry responded by saying, “yes sir,” after the Hearing Officer asked whether he “understood” simply does not negate Mr. Henry’s objection to the Hearing Officer’s failure to provide the twice specifically requested documents. Similarly, the disciplinary hearing transcript indicates that Mr. Henry explicitly requested the four inmates (N-1-13 bottom, N-1-37, N-1-35, and N-1-42) as well as Officer Faulkner as hearing witnesses on April 27, 2012, (R. 25-26), and on May 22, 2012. (R. 28). Shortly after the Hearing Officer denied his request for inmate witnesses and an officer witness, Mr. Henry posited a general objection that encompassed these specific denials: H/O Gutwein: “Any other witnesses other than the ones mentioned?” Inmate Henry: “Um 13 cube.” H/O Gutwein: “Witness you’re requesting had refused to testify on you’re [sic] behalf Mr. Henry, anyone other than Officer Faulkner?” Inmate Henry: “Um … No, you say he refused?” H/O Gutwein: “He refused to testify on you’re [sic] behalf Mr. Henry.” Inmate Henry: “Alright.” 4 H/O Gutwein: “ . . . I am denying you’re [sic] request to call Officer Faulkner as a witness as it would be redundant based on the testimony of Officer Lambertson. Any other witnesses Mr. Henry?” Inmate Henry: “No sir. . . .” H/O Gutwein: “Anything else then Mr. Henry? . . . .” Inmate Henry: “Officer Gutwein (inaudible) I’m not involved in this incident. I am objecting to the whole hearing. . . .” (R. 42). Again although Mr. Henry indicated his understanding by responding “alright” immediately after the Hearing Officer had informed him that an inmate had refused to testify on his behalf, he implicitly objected to the Hearing Officer’s failure to inquire further regarding the refusal. Likewise, when Mr. Henry answered “no sir” in response to the Hearing Officer’s question following his denial of Mr. Henry’s request to call Officer Faulkner, he was appropriately responding to a direct question. Mr. Henry’s general objection adequately preserved the both of these witness-related issues for judicial review. Respondent’s reliance on several cases where a petitioner failed to object during the disciplinary hearing is misplaced. (Resp.’s Br. at 6). See, e.g., Kalwasinski v. Fischer, 87 AD.3d 1207, 1208 (3d Dep’t 2011) (“failure to make appropriate objections during the hearing”); Blackwell v. Goord, 5 A.D.3d 883, 885 (3d Dep’t 2004) (“failing to raise appropriate objections at the hearing”); Victor v. Goord, 253 A.D.2d 971, 971 (3d Dep’t 1998) (waiving claim by failing to object); Russell v. Selsky, 50 A.D.3d 1412, 1413 (3d Dep’t 2008) (“raised no objection in this regard”). Unlike the petitioners in these cases, Mr. Henry requested documents and witnesses every day the hearing convened. (R. 25-28, 37-38). In addition to, he explicitly objected shortly after being denied the documentary evidence and witnesses he had requested.