State of New York Supreme Court, Appellate Division Third Judicial Department
May 20, 2010
IN THE MATTER OF JOHN H. WHITE, PETITIONER,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT. (AND ANOTHER RELATED PROCEEDING.)
The opinion of the court was delivered by: Stein, J.
MEMORANDUM AND JUDGMENT
Calendar Date: April 27, 2010
Before: Peters, J.P., Rose, Stein, McCarthy and Garry, JJ.
Proceedings pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
According to a misbehavior report, a correction sergeant ordered petitioner out of line while he was en route to recreation and a correction officer directed that he submit to a pat frisk. Petitioner refused to comply and, when the correction officer attempted to move petitioner into position, petitioner punched the correction officer on the left side of his face.
Following a tier III disciplinary hearing stemming from the incident, petitioner was found guilty of violent conduct, refusing a direct order, violating frisk procedures and assaulting staff. The determination was upheld on administrative appeal, prompting these CPLR article 78 proceedings.*fn1
Meaningful review by this Court is precluded because the hearing transcript is incomplete (see Matter of La Van v New York State Dept. of Correctional Servs., 47 AD3d 1153, 1153 ). Although the Hearing Officer cited the testimony of the correction sergeant -- one of the witnesses requested by petitioner -- as one of the factors considered in rendering the determination of guilt, such testimony is missing entirely. As discrepancies in the record render the correction sergeant's testimony potentially significant, we annul respondent's determination and remit the matter for a new hearing (see id.; see generally Matter of Douglas v Goord, 24 AD3d 922, 923 ; Matter of Allen v Goord, 14 AD3d 961, 962 ).
Peters, J.P., Rose, McCarthy and Garry, JJ., concur.
ADJUDGED that the determination is annulled, without costs, petitions granted, respondent is directed to expunge all references to this matter from petitioner's institutional record and matter remitted to respondent for further proceedings not inconsistent with this Court's decision.