§ 1-04 — Hearing Procedures

§ 1-04 Hearing Procedures.

(a) General procedures. (1) When you are placed in any of the most restrictive security categories (other than Pre-Hearing Detention, which is addressed in subsection (b) below), you will be given written notice of: (i) The reasons for the designation. (ii) The evidence relied upon. The Department is not required to provide you with the source of confidential information. (iii) The right to a hearing before an impartial Adjudication Captain appointed from the Adjudication Unit. (iv) Your rights at the hearing. (b) Disciplinary hearing procedures. (1) Pre-Hearing Detention (PHD). When you are placed in Pre-Hearing Detention (PHD) prior to your disciplinary hearing, (i) You will be issued a Notice of Pre-Hearing Detention within twenty-four (24) hours of the placement, which will state the reason for the placement in PHD. (ii) You will have the opportunity to respond to the Notice of Pre-Hearing Detection, verbally, or in writing in a designated space on the Notice form. (iii) The infraction hearing will be completed within three (3) business days of your transfer to PHD whenever possible, but you shall not be held in PHD for more than seven (7) business days. If the hearing is not held in such time, you must be released from PHD. (2) Disciplinary Infraction Hearings. If you are not placed in PHD, the infraction hearing will take place within three (3) business days after you receive written notice, unless any further delay is justified in accordance with disciplinary due process Your hearing may be held in absentia (that is, without you present) only if the following occurs: (i) you are notified of the hearing and refuse to appear; or (ii) you appear and are extremely disruptive, causing a situation that is unduly hazardous to institutional safety that necessitates your removal from the hearing room If your hearing is held in absentia, the justification for holding the hearing in absentia shall be clearly documented in the Adjudication Captain's decision. (3) At your hearing, you have the following rights: (i) To personally appear; (ii) To make statements; (iii) To present material, relevant, and non-duplicative evidence; (iv) To have witnesses testify at the hearing, provided they are reasonably available and their attendance at the infraction hearing will not be unduly hazardous to the institutional safety of correctional goals. (v) If you are non-English speaking, illiterate, blind, deaf, have poor vision, are hard of hearing, or if your case is very complicated, you have a right to be helped by a "hearing facilitator" (not a lawyer). The hearing facilitator shall be designated by the chief administrative officer, or the chief administrative officer's designee, at least twenty-four (24) hours prior to the hearing. The hearing facilitator may assist you with: (aa) Interviewing witnesses; (bb) Obtaining evidence and/or written statements; (cc) Providing assistance at the disciplinary hearing; (dd) Providing assistance understanding administrative segregation decisions; (ee) Providing assistance understanding the evidence relied on by the hearing officer and the reasons for action taken; (ff) Providing assistance understanding the waiver of any rights; and (gg) Providing assistance in filing an appeal. (vi) If you do not understand or are not able to communicate in English well enough to conduct the hearing in English, you have a right to an interpreter in addition to a hearing facilitator. (vii) You have a right to appeal a decision against you. (viii) You have a right to have the hearing recorded. (c) Protective custody. (1) If you are transferred to protective custody (PC), the Department will determine within two (2) business days whether you should continue in such housing. If you do not consent to a decision to continue PC placement, you will be provided with written notice as set forth in 39 RCNY § 1-04(a)(1). (2) The hearing will be held no sooner than 24 hours and no later than three (3) business days after you receive the written notice of your PC housing placement, unless an adjournment is required or for one of the reasons set forth in Directive 6007R-A. (3) The Adjudication Captain will recommend whether you should remain in PC to the Operations Security Intelligence Unit (OSIU) in writing within one (1) business day after the hearing. You will receive a copy of the decision from OSIU. (4) If you are placed in PC the Department will review your placement thirty (30) days after OSIU initially determined the assignment and then every sixty (60) days thereafter to see if you should remain in PC. You will be notified in writing of the results of that review. (5) If you request a hearing you will have the following rights: (i) To personally appear; (ii) To be informed of the evidence against you that resulted in the designation, subject to limitations regarding confidential information to protect another person's safety or facility security; (iii) The opportunity to make a statement; (iv) To call witnesses subject to the Adjudication Captain's discretion; (v) To present evidence; (vi) The right to a written determination with reasons. (Amended City Record 8/1/2019, eff. 8/31/2019)