In the Matter of Jevon Henry, Appellant,v.Brian Fischer,, Respondent.

Brief

N.Y.November 14, 2016

Writer’s Direct Dial: +1-212-225-2266 E-Mail: Dherrington@cgsh.com February 19, 2015 VIA FEDERAL EXPRESS The Honorable Andrew W. Klein Chief Clerk and Legal Counsel to the Court New York State Court of Appeals, Clerk’s Office 20 Eagle Street Albany, NY 12207-1095 Re: Matter of Henry v. Fischer, APL-2014-00269 This firm, along with the Main Street Legal Services, Inc., represents Petitioner- Appellant Jevon Henry. By letter dated November 12, 2014, the Court granted leave to appeal and designated this matter for review under Rule 500.11. 1 Mr. Henry seeks reversal of the decision by the Appellate Division, Third Judicial Department, which affirmed the dismissal, on the ground of waiver, of his Article 78 challenge to a Tier III prison disciplinary hearing in which the Hearing Officer denied his constitutional and regulatory right to call witnesses and present documentary evidence. In addition to this letter, Mr. Henry incorporates by reference the arguments and evidence set forth in his December 5, 2013 brief and February 18, 2014 reply brief to the Appellate Division and his September 12, 2014 memorandum in support of motion for leave to appeal to this Court. 1 While this letter brief was initially due on December 5, 2014, Mr. Henry received an extension until February 20, 2015. We have enclosed three copies of the letters confirming extensions of time to file the letter brief. Also, we are enclosing the original and three copies of this letter brief, with proof of service of one copy on Respondent-Appellee, and three copies each of the Appellant Division briefs and the Appendix, along with exhibits used in the Appellate Division. Andrew W. Klein, Esq., p. 2 PRELIMINARY STATEMENT This appeal provides the Court with an opportunity to clarify the rules for waiver in the context of a pro se inmate’s prison disciplinary hearing. Analysis of the hearing transcript in this case reveals a workable standard for determining when it is appropriate to deny judicial review based on a theory of waiver. This appeal arises from a prison disciplinary proceeding in which Mr. Henry was found guilty of participating in a purported “gang attack” and sentenced to two years of solitary confinement. At the hearing that resulted in this sanction, Mr. Henry’s requests for important witnesses and documents needed for his defense were denied. The courts below never addressed whether the Hearing Officer’s denial of these requests was proper because they accepted the State’s argument that Mr. Henry somehow waived this issue. The State’s theory appears to be that a party requesting relief must not only make the request, but then issue a formal objection to the denial of the request - saying something to the effect of “I object to your ruling denying my request” - or else the issue is waived and therefore insulated from judicial review. The State’s argument is manifestly wrong. Appellate courts may review “any ruling . . . which was a refusal or failure to act as requested by the appellant.” N.Y. C.P.L.R. § 5501(a)(3) (McKinney 2014). Indeed, the CPLR provides clear guidance about waiver in emphasizing that “[f]ormal exceptions to rulings of the court are unnecessary.” N.Y. C.P.L.R. § 4017 (McKinney 2014). Rather, all that is needed is that “a party shall make known the action which he requests the court to take.” Id. Given that making the request is all that is required from parties, usually represented by lawyers in more formal court settings, it would be doubly unfair to hold pro se inmates in less formal administrative hearings to a higher standard. Here, Mr. Henry requested specific documents and witnesses for his hearing, and the Hearing Officer made rulings denying those requests. This should suffice to preserve Mr. Henry’s right to challenge these rulings on appeal. He was not required to make a “formal exception” to the rulings to preserve that right. In a pro se proceeding, in which an unrepresented inmate is facing the punishment of two years of solitary confinement, courts should be especially careful to protect a party’s constitutional right to request witnesses and documents in his defense. A finding of waiver in this context is proper only if the inmate either did not make a request for relief or expressly stated that he was waiving his rights and the waiver is demonstrated to be knowing, voluntary and intelligent. Yet the State wrongly seeks to subject such a pro se party to a rule of forfeiture more severe than that applied to a corporation represented by the best lawyers available, requiring the inmate not only to request relief and receive a ruling denying the request, but also to object to the denial. This should not be the law, as the CPLR itself makes clear. Even under the State’s flawed framework, no proper basis would exist for finding that Mr. Henry waived his right to request specific witnesses and documents for his defense. What the State points to as purported support for its waiver argument reflects, at most, that Mr. Henry acknowledged the rulings - by saying “yes sir,” for example - when the Hearing Officer Andrew W. Klein, Esq., p. 3 asked whether Mr. Henry understood that his request for documents was being denied. R. at 37. This is akin to a lawyer saying, “Understood, Your Honor,” when the judge overrules her objection or denies a request she makes. Such an acknowledgement plainly does not constitute a waiver of the issue. That Mr. Henry did not intend to waive his requests is especially clear here because he repeatedly stated his “object[ions] to the whole hearing” following the Hearing Officer’s denial of the requests. R. at 38, 42. 2 Finally, even apart from the reasons set forth above, the State’s erroneous arguments cannot support a finding of waiver here, because Mr. Henry indisputably raised the matters at issue during the administrative review process, prior to the Respondent-Appellee’s final determination of the charges against him. As the Appellate Division has recognized in other cases, an issue is preserved for appeal when raised during the administrative review process, even if not raised at the hearing, unless the error could have been corrected had it been raised at the hearing. Here, the State does not and cannot contend that the Hearing Officer would have cured his erroneous rulings if Mr. Henry had reiterated (yet again) his objections to them. Therefore, because there is no dispute that Mr. Henry raised these issues during the administrative review process, they are preserved for appellate review. QUESTIONS PRESENTED 1. Whether a pro se prisoner who is facing solitary confinement as the result of a prison disciplinary proceeding, who twice objected to the “whole hearing” after the Hearing Officer denied his request to present documentary evidence and to call witnesses, should be deemed to have preserved these issues for judicial review. 2 General objections, when coupled with specific objections or statements by a party that allow the hearing officer to infer that the party objects, are sufficient to preserve an issue for appellate review. See, e.g., Gonzalez v. State Liquor Auth., 30 N.Y.2d 108, 112-13 (N.Y. 1972) (internal citation and quotation marks omitted) (“Petitioner's general objection is, of course, to no avail since it was not followed by the requisite specific objection, nor does it appear from the record that the hearing officer could infer from anything said by [petitioner’s] counsel that there was any objection on” the grounds being raised in this appeal). Mr. Henry’s multiple requests for documentary evidence and witness testimony, as well as his objections to the whole hearing after these requests were denied, clearly apprised the Hearing Office that Mr. Henry objected to the denial of these requests. Cf. Russell v. Selsky, 50 A.D.3d 1412, 1413 (3d Dep’t 2008) (finding that petitioner “raised no objection in this regard [denial of witness as irrelevant], nor did he subsequently renew his request for this witness”); Kalwasinski v. Fischer, 87 A.D.3d 1207, 1208 (3d Dep’t 2011) (finding that petitioner “fail[ed] to make appropriate objections during the hearing”). Andrew W. Klein, Esq., p. 4 2. Whether alleged violations of Appellant’s fundamental constitutional rights to present documentary evidence and call witnesses in the context of a prison disciplinary hearing can be waived absent a knowing, voluntary and intelligent waiver. 3. Whether subsequent, specific objections to the violation of Appellant’s right to call witnesses and right to submit documentary evidence, presented by counsel at the administrative review phase prior to Appellee’s final determination, is sufficient to preserve these issues for judicial review. SUMMARY OF FACTS Mr. Henry was charged with participating in an alleged assault of another inmate at the Greene Correctional Facility by eight individuals who purportedly were part of a gang. R. at 22. Mr. Henry pled not guilty to the charges and sought to establish that he was not involved in the incident, was nowhere near where it occurred but instead was in his cell, and that he only associates with older gentlemen in the dorm and not the younger individuals who were involved in the incident. R. at 24-26, 33-35. To support his defense, Mr. Henry requested several documents, including the Unusual Incident Report, the To/From Report, and the logbook, which records all inmate movement at the facility. R. at 25. These documents were important to Mr. Henry’s defense, and Mr. Henry repeated his requests for them at least three times over the course of the days on which the hearing took place. R. at 25, 27-29, 37. On the final day of the hearing, the Hearing Officer finally told Mr. Henry that he was denying his requests. R. at 37. The Hearing Officer denied the request for the Unusual Incident Report on the basis that the report did not name Mr. Henry. Id. The Unusual Incident Report was exculpatory as to Mr. Henry because it said nothing to indicate that Mr. Henry was involved in the incident. 3 Furthermore, the Report’s description of who was involved and what happened likely would have provided additional information helpful to his defense. Yet the Hearing Officer refused Mr. Henry’s multiple requests for the Report. Id. The Hearing Officer also denied Mr. Henry’s request for the To/From Report on the basis that it was confidential, R. at 42, and for the logbook, stating that it had no description of the incident. R. at 37. Thus, the documentary evidence would have been helpful to Mr. Henry’s defense, and certainly nothing in it supported the case against him. But the Hearing Officer denied all of Mr. Henry’s requests for the documents. Nothing in the record supports a conclusion that Mr. Henry waived or withdrew his requests for these documents. When the Hearing Officer merely 3 After the Hearing Officer had denied his request for the Unusual Incident Report, Mr. Henry stated, “I’m not in none of the incident reports. I don’t know what else to say . . .” R. at 43. Andrew W. Klein, Esq., p. 5 asked Mr. Henry “do you understand” that the requests are denied, Mr. Henry replied, “Yes sir.” R. at 37. Seconds later when the Hearing Officer asked, “Anything else Mr. Henry?” Mr. Henry stated “I’m objecting to the whole hearing.” R. at 38. The transcript reads as follow: 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 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 . . . .” 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. at 37-38. In addition, the Hearing Officer denied Mr. Henry’s request for several witnesses who were important to his defense. Mr. Henry requested to call as his witnesses two Correctional Officers and four inmates. R. at 25-26, 28. He was permitted to call inmate Emanuel Hilaire, who testified that when the incident occurred, Mr. Henry was already in his cube. R. at 32. Mr. Henry also was permitted to call inmate Hogan as a witness. R. at 33. Mr. Hogan testified that Mr. Henry was not near the incident and that Mr. Henry only associates with older gentlemen in the dorm, not the younger individuals who were involved in the incident. R. at 34-35. Mr. Hogan also testified that he saw the man who did injure the inmate during the incident and that it was not Mr. Henry. R. at 34. Lastly, Mr. Henry was allowed to call Officer Lambertson. R. at 35. He testified that he only vaguely remembered the incident and could not tell the Hearing Officer anything about it. Id. Officer Lambertson was also unable to answer Mr. Henry’s questions about whether he had observed Mr. Henry associate with any of the individuals involved in the incident or whether Mr. Henry was near the location of the incident when it occurred. Id. On the last day of the hearing, Mr. Henry reiterated his requests to call two inmate witnesses and Officer Faulkner. R. at 39. One of the inmates was allowed to testify. However, the Hearing Officer informed Mr. Henry that the other inmate, inmate Kaufman, refused to testify. The Hearing Officer did not give an explanation for Mr. Kaufman’s refusal. Andrew W. Klein, Esq., p. 6 R. at 41. Mr. Henry acknowledged the denial of this request, saying, “Alright.” Id. Next, the Hearing Officer denied Mr. Henry’s request to call Officer Faulkner as a witness, on the basis that his testimony would be redundant of Officer Lambertson’s. R. at 41. However, as noted, Officer Lambertson testified that he was only “vaguely” familiar with the alleged incident, was unaware of whether Mr. Henry was involved, and was unable to say whether or not Mr. Henry associated with the individuals involved in the incident. R. at 35. As a result, Mr. Henry asked to call Officer Faulkner to put the incident in context and to provide proof that he was not involved and did not associate with those who were involved, testimony which Officer Lambertson had been unable to provide. Id. Mr. Henry was not asked to respond to the denial of his request for Officer Faulkner as a witness, and he said nothing that could be construed as withdrawing his request. Further, immediately after the Hearing Officer denied Mr. Henry’s requests for witnesses and immediately before the hearing ended, Mr. Henry asked if he could be permitted to speak. R. at 41. He then stated, “Officer Gutwein (inaudible) I’m not involved in this incident. I am objecting to the whole hearing. . . .” R. at 42. Following the hearing, the Hearing Officer found Mr. Henry guilty and sentenced him to two years of solitary confinement, loss of two years of good time, and loss of packages, commissary and phone use for two years. R. at 47. ARGUMENT POINT I MR. HENRY DID NOT WAIVE HIS RIGHT TO CHALLENGE THE HEARING OFFICER’S DENIAL OF HIS REQUESTS FOR DOCUMENTS AND WITNESSES Based on the record set forth above, the State argued that Mr. Henry had waived his right to challenge on appeal the Hearing Officer’s denial of his requests for documents and witnesses. The Supreme Court agreed, granting the State’s motion to dismiss Mr. Henry’s Article 78 petition without affording any review of the merits of the Hearing Officer’s rulings, and the Appellate Division affirmed. Henry v. Fischer, Index No. 6386-12 (N.Y. Sup. Ct. May 1, 2013) at R. at 7-10; Henry v. Fischer, 120 A.D.3d 868 (3d Dep’t 2014). The State’s waiver argument depends on the premise that, to preserve an issue for appeal, it is not enough for a party to request relief and receive a ruling denying that request. Rather, the party must also go on to state a formal exception to the ruling denying his request. But the CPLR squarely defeats that argument, expressly providing that “[f]ormal exceptions to rulings of the court are unnecessary.” N.Y. C.P.L.R. § 4017 (emphasis supplied). All that is needed is that “a party shall make known the action which he requests the court to take.” Id. Andrew W. Klein, Esq., p. 7 The CPLR further expressly states that appellate courts may review “any ruling . . . which was a refusal or failure to act requested by the appellant,” which plainly embraces the Hearing Officer’s denials of Mr. Henry’s requests for documents and witnesses here. N.Y. C.P.L.R. § 5501(a)(3). 4 Thus, “[w]hen a ruling is requested, the lawyer’s obligation is to make known the action she thinks the court should take . . . ; the combination of words that so apprises the court is secondary.” Siegel, N.Y. Prac. § 396 (5th ed. 2011). As Professor Siegel explains, “[t]here is no requirement today to follow an unfavorable ruling with the word ‘exception’ or any other word or words to indicate displeasure. As long as the loser’s position on the point has been made known to the court, the unfavorable ruling is preserved for appellate review without the follow- up utterance of the pouty ‘exception’ at one time in favor.” Id.; see also, e.g., People v. Grice, 98 A.D.3d 755, 755 (3d Dep’t 2012) (“To preserve an issue for appeal, a specific objection or ‘exception’ is not mandated; rather, it ‘is sufficient if the party . . . either expressly or impliedly sought or requested a particular ruling’”) (citing N.Y. Crim. Proc. § 470.05; CPLR § 4017); Mars Assocs., Inc. v. N.Y.C. Educ. Const. Fund, 126 A.D.2d 178, 189 (1st Dep’t 1987) (party preserved for appeal its request that jury be asked to clarify its verdict, by requesting the relief and receiving ruling denying the request) (citing CPLR §§ 4017, 5501(a)(3)). Indeed, some courts have reprimanded counsel for objecting to the denial of requests, on the basis that doing so is disruptive and is plainly unnecessary to preserve the issue for appeal. See Roma v. Blaustein, 44 A.D.2d 576, 577 (2d Dep’t 1974). Therefore, if formal objections are not required by attorneys in civil proceedings, it would be unjust to hold pro se inmates in less formal administrative hearings to a higher standard to register objections. Here, as set forth above, Mr. Henry made numerous requests to call specific witnesses and obtain particular documentary evidence for his case. R. at 25-28, 37, 39, 41. The Hearing Officer made rulings denying those requests. R. at 37-39, 41-42. Mr. Henry was not and should not be required to say “I object” or “I except” in response to these denials. The fact that these requests were made and denied is sufficient to preserve for review whether the Hearing Officer’s rulings were proper. The Court therefore should reverse the decisions below that rested 4 The criminal procedure rule governing objections and preservation, N.Y. Crim. Proc.§ 470.05 (McKinney 2014), similarly provides for preservation by merely requesting a ruling: “In addition, a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court’s ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.” Andrew W. Klein, Esq., p. 8 on a finding that Mr. Henry had somehow waived his right to seek review of these rulings. When reviewed on the merits, the Hearing Officer’s rulings and his ultimate finding of guilt should likewise be reversed. While the simple basis set forth above compels reversal here, it bears emphasis that, even under its erroneous framework, the State’s waiver argument should be rejected. The State’s waiver argument hinges largely on the fact that, following one of the Hearing Officer’s rulings, Mr. Henry stated, “Alright.” This was merely a polite acknowledgment that his request was being denied - akin to a lawyer at trial saying, “Understood, Your Honor,” after the judge denies her request or overrules her objection. It certainly does not demonstrate an intent to waive or withdraw the requested relief. Further, the “alright” comment followed only one of the Hearing Officer’s rulings, the denial of Mr. Henry’s request for Inmate Kaufman. R. at 40-41. Yet, the State wrongly told the Supreme Court that Mr. Henry had stated “alright” following both this ruling and the Hearing Officer’s denial of the request for Officer Faulkner. Resp’t Mot. to Dismiss at R. at 18. The Supreme Court relied on this erroneous representation in granting the State’s motion to dismiss, stating: “Further, and more important to the instant motion, when petitioner was informed that his request for this Officer [Faulkner] had been denied, he simply stated, ‘alright.’” Henry v. Fischer, Index No. 6386-12, at R. at 9. In fact, as the record confirms, Mr. Henry did not say “alright” or anything else that could possibly be construed as a waiver in response to the Hearing Officer’s denial of his request for Officer Faulkner. R. at 41. With respect to the denial of Mr. Henry’s requests for the Unusual Incident Report and the To/From Report, the Hearing Officer merely asked Mr. Henry whether he understood that his requests were being denied, to which he responded, “Yes sir.” R. at 37. None of this can be construed as a withdrawal or waiver of these requests. Indeed, that the State’s argument depends on parsing the record so finely and trying to discern an intent to waive based on words such as “Yes sir” or “alright” may have led the State to err in representing the record and the Supreme Court to reply on that erroneous representation. This demonstrates that the State’s proposed framework is not only wrong as a matter of law, but also is unworkable and prone to error. Still further, Mr. Henry’s affirmative statements on the record dispel any doubt as to whether he intended to waive his requests and his rights. The record reflects that, following the Hearing Officer’s denial of his requests, Mr. Henry twice stated that he was “objecting to the whole hearing.” R. at 37-38, 42. Thus, while it is unnecessary, to use Professor Siegel’s words, “to follow an unfavorable ruling with the word ‘exception’ or any other word or words to indicate displeasure,” Mr. Henry plainly and explicitly used words to indicate his displeasure - and disagreement - with the Hearing Officer’s rulings and conduct of the hearing. On this record, therefore, it is impossible to find that Mr. Henry waived his rights with respect to these Andrew W. Klein, Esq., p. 9 requests. See, e.g., Garrett v. Goord, 14 A.D.3d 826, 826 (3d Dep’t 2005) (petitioner preserved his right to challenge a prison rule as impermissibly vague where the Petitioner “complained at every stage of [his] proceeding”); Escoto v. Goord, 9 A.D.3d 518, 519 (3d Dep’t 2004) (petitioner preserved issue by making general objection at the hearing after making requests to call witnesses and “allud[ing]” to the importance of the precluded witnesses). In sum, as set forth above, there is no basis for a finding of waiver on the record here. This would be true even if Mr. Henry were represented by counsel at the hearing. But in fact Mr. Henry was pro se, because state regulations do not permit him to have an attorney present during the hearing. See N.Y. Comp. Codes R. & Reg. tit. 7 § 254 (2015). It is well known that “pro se litigants are almost unanimously ill equipped to encounter the complexities of the judicial system.” Jonathan D. Rosenbloom, Exploring Methods to Improve Management and Fairness in Pro Se Cases: A Study of the Pro Se Docket in the Southern District of New York, 30 Fordham Urb. L.J. 305, 306 (2002). As a result, “[i]t is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal citation and quotation marks omitted); see also Brownell v. Krom, 466 F.3d 305, 310 (2d Cir. 2006); Forsyth v. Fed’n Employ’t & Guidance Serv., 409 F.3d 565, 569 (2d Cir. 2005); Sharpe v. Conole, 386 F.3d 482, 484 (2d Cir. 2004); Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003); Weixel v. Bd. Of Educ., 287 F.3d 138, 145-46 (2d Cir. 2002). The “policy of liberally construing pro se submissions is driven by the understanding that ‘[i]mplicit in the right of self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.” Triestman, 470 F.3d at 475 (quoting Tragath v. Zack, 710 F.2d 90, 95 (2d Cir. 1983)); see also Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994) (recognizing that pro se litigants must be accorded “special solicitude”). Applied here, these principles make it even more clear that the Court should reverse the decision below holding that Mr. Henry waived his right to challenge the Hearing Officer’s rulings denying his requests for documents and witnesses. POINT II ANY PURPORTED WAIVER OF MR. HENRY’S CONSTITUTIONAL RIGHT TO CALL WITNESSES AND REQUEST DOCUMENTS WAS NOT KNOWING, VOLUNTARY AND INTELLIGENT In defending himself against a disciplinary charge such as the one here, Mr. Henry has a constitutional right to request witnesses and documentary evidence. Wolff v. McDonnell, 418 U.S. 539, 566 (1974) (procedural due process requires that an inmate facing Andrew W. Klein, Esq., p. 10 disciplinary proceedings be allowed to call witnesses and present documentary evidence in his defense in the absence of overriding institutional safety or correctional goals). To hold that Mr. Henry forfeited this constitutional right, therefore, it would not be enough to find merely that as a procedural matter he did not do what is ordinarily required to preserve an issue for review - though, again, Mr. Henry plainly did do what is required. Rather, a court would need to find not only that Mr. Henry waived his right to call witnesses and request documents, but that his doing so was knowing, voluntary and intelligent. Allen v. Goord, 14 A.D.3d 961, 962 (3d Dep’t 2005) (even where petitioner withdrew his request for a correction officer to testify, his waiver of the right to call a witness was not knowing and intelligent and therefore was not effective). In Johnson v. Coombe, for example, the Appellate Division rejected the State’s waiver argument on this basis: Respondents contend that because petitioner failed to reiterate his request for [two witnesses to be called to testify] or to object to their absence at the close of the hearing, petitioner waived his right to call them. We disagree. The constitutional right [to call witnesses] is not waivable unless it is shown that the [inmate] was informed of its existence and made a knowing and intelligent waiver. This showing has not been made here. 44 A.D.2d 664, 664 (3d Dep’t 1997) (internal citation and quotation marks omitted). Here, Mr. Henry never evinced any intention to waive his rights. Instead, he stated his requests for specific documents and witnesses repeatedly and explained their importance to his defense. R. at 25-29, 37, 39. Following the Hearing Officer’s denial of the requests, Mr. Henry registered his objection to the entire hearing. R. at 38, 42. Hence, there simply is no basis to find a knowing, voluntary and intelligent waiver of Mr. Henry’s constitutional right to call witnesses and request documents. Escoto v. Goord, 9 A.D.3d at 519- 520 (where petitioner requested a witness, was denied that request, again alluded to the importance of the witness’ testimony before the hearing adjourned and registered a general objection to the hearing, the petitioner had not knowingly and intelligently waived his right to call the witness). POINT III MR. HENRY PROPERLY RAISED AND PRESERVED HIS CHALLENGE TO THE DENIAL OF HIS REQUESTS FOR WITNESSES AND DOCUMENTS, BY RAISING THESE ISSUES DURING THE ADMINISTRATIVE REVIEW Even if the State could overcome the obstacles discussed above, its waiver argument would fail because Mr. Henry indisputably raised the matters at issue during the Andrew W. Klein, Esq., p. 11 administrative review process, prior to the Appellee’s final determination of the charges against him. As the Appellate Division has recognized in other cases, “lack of preservation that arises from the failure to raise an issue at a disciplinary hearing should be confined to those instances in which the Hearing Officer has the opportunity to correct the deficiency if so raised.” Morales v. Fischer, 89 A.D.3d 1346, 1346 (3d Dep’t 2011); see also Correnti v. Prack, 93 A.D. 3d 970, 971 (3d Dep’t 2012) (party may be precluded from raising an issue if he failed to raise the issue during his hearing, when the Hearing Officer could have corrected the error). Here, the State contends that an inmate waives his rights to further review unless, following the Hearing Officer’s denial of his requests, he states his objection to those rulings. As shown above, that argument is wrong and, in any event, is inapplicable to the facts here. But even apart from those failings, the State’s waiver argument would fail here because the State does not and cannot contend that the Hearing Officer would have corrected his erroneous rulings if Mr. Henry had reiterated (yet again) his objections to them. Because there is no dispute that Mr. Henry raised these issues during the administrative review process, they are thus preserved for appellate review. Andrew W. Klein, Esq., p. 12 CONCLUSION For the reasons set forth above and in his prior briefs and submissions that are incorporated here by reference, Mr. Henry respectfully requests that the Court reverse the Appellate Division’s decision affirming the dismissal of his Article 78 petition on the basis of waiver. Dated: February 19, 2015 Respectfully submitted, David H. Herrington Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 MAIN STREET LEGAL SERVICES, INC. Donna H. Lee, Of Counsel 2 Court Square Long Island City, NY 11101 Of counsel: Lewis J. Liman, Cleary Gottlieb Steen & Hamilton LLP Enclosures cc: Eric T. Schneiderman New York State Attorney General The Capitol Albany, N.Y. 12224 Attn: Marcus Mastracco, Assistant Attorney General