Amending disciplinary charges "to conform with the testimony" given in the course of the disciplinary hearing
Office of Administrative Trials and Hearings, OATH Index Nos. 1213/18 and 1215/1
Two correction officers [Respondents] were charged with making false reports about a use of force incident involving an inmate.
Judge Lewis also denied a request by the Appointing Authority, made on the second day of hearing, to expand the scope of its redirect examination of its primary witness and to amend the charges to conform to any testimony derived from the expanded questioning.
The ALJ concluded that amendment of the charges at that juncture would cause substantial prejudice to Respondents who had already spent a full day defending the charges filed against the correction officers.
Citing Block v. Ambach, 73 N.Y.2d 323 and DiAmbrosio v. Dep’t of Health, 4 N.Y. 3d 133, Judge Lewis explained that "Charges in administrative proceedings must apprise the party whose rights are being determined of the charges against him ... to allow for the preparation of an adequate defense. In an administrative trial, as in a criminal trial, [n]o person may lose substantial rights because of wrongdoing shown by the evidence, but not charged.”
As to the merits of the disciplinary charges filed against the officers who were part of a team sent to search for contraband in a housing area, during the search, a third officer sprayed an inmate with a chemical agent. In their reports, Respondents wrote that the inmate, who was facing a wall, turned around or spun away from the wall in an aggressive manner before he was sprayed.
Video of the incident showed that the inmate turned his head to look at a struggle involving another inmate. But the inmate did not aggressively turn his body or spin away from the wall. OATH Administrative Law Judge Faye Lewis sustained the false statement charges relating to the characterization of the inmate acting aggressively.
One of the two officers was also charged with making a second false statement in his use of force report concerning another inmate. ALJ Lewis dismissed that portion of the charge for lack of sufficient evidence to support the allegation.
A 15-day suspension recommended for one Respondent and a 45-day suspension for the other, based upon the second officer’s prior disciplinary record involving similar misconduct.
The decision is posted on the Internet at: