Calendar Date: July 27, 2011
Before: Peters, J.P., Spain, Malone Jr., McCarthy and Garry, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.
Petitioner, a prison inmate, was served with a misbehavior report charging him with possession of a weapon after a sharpened plexiglass shank was allegedly discovered under his mattress during a cell frisk. Following a tier III disciplinary hearing, during which petitioner requested and was denied a copy of Department of Correctional Services Directive No. 4910, he was found guilty of the charge. When that determination was affirmed administratively, petitioner commenced this CPLR article 78 proceeding.
Because the Hearing Officer improperly denied petitioner's request for a relevant document, we annul the determination. Respondent concedes that the Hearing Officer erred in denying petitioner's request for a copy of Directive No. 4910, which outlines the proper techniques for conducting a cell search, including the requirement that, when an inmate is removed from the cell prior to the search, he or she shall be placed outside the immediate area and allowed to observe the search (see Department of Correctional Services Directive No. 4910 [V] [C]
). Because the record indicates that petitioner may have been removed from the immediate area and not allowed to observe the search and, thus, the requested document could have been relevant to formulating his defense, we find that the determination must be annulled (see Matter of Caldwell v Goord, 34 AD3d 1173, 1174 ; Matter of Mitchell v Goord, 28 AD3d 1039, 1040 ). Inasmuch as the determination was otherwise supported by substantial evidence, the proper remedy is remittal for a new hearing (see Matter of Mitchell v Goord, 28 AD3d at 1040; Matter of Hillard v Coughlin, 187 AD2d 136, 140 , lv denied 82 NY2d 651 ).
Peters, J.P., Spain, Malone Jr., McCarthy and Garry, JJ., concur.
ADJUDGED that the determination is annulled, without costs, and matter remitted to the Commissioner of Correctional Services for further proceedings not inconsistent with this Court's decision.
Robert D. Mayberger Clerk of the Court
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