State of New York Supreme Court, Appellate Division Third Judicial Department
May 24, 2012
IN THE MATTER OF RONALD HAYES, APPELLANT,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.
Appeal from a judgment of the Supreme Court (Reynolds Fitzgerald, J.), entered June 3, 2011 in Chemung County, which partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
MEMORANDUM AND ORDER
Calendar Date: April 4, 2012
Before: Peters, P.J., Mercure, Malone Jr., Kavanagh and Egan Jr., JJ.
Petitioner commenced this CPLR article 78 proceeding challenging a prison disciplinary determination. Finding that a significant portion of the transcript was missing and that meaningful review was precluded, Supreme Court partially granted the petition by annulling the determination and remitting for a new hearing. Petitioner appeals.
Petitioner's sole contention is that Supreme Court should have ordered expungement instead of a new hearing. We find this claim to be unpersuasive. As this Court has noted, "[e]xpungement will be ordered only where there has been a showing that '(1) the challenged disciplinary determination is not supported by substantial evidence . . . ; (2) there has been a violation of one of the inmate's fundamental due process rights, as enunciated in Wolff v McDonnell (418 US 539 ); or (3) other equitable considerations dictate expungement of the record rather than remittal for a new hearing'" (Matter of Monko v Selsky, 246 AD2d 699, 700 , quoting Matter of Hillard v Coughlin, 187 AD2d 136, 140 , lv denied 82 NY2d 651  [citations omitted]). None of the foregoing concerns are implicated by the missing testimony in the case at hand. Therefore, Supreme Court properly ordered a new hearing (see Matter of La Van v New York State Dept. of Correctional Servs., 47 AD3d 1153 ; Matter of Auricchio v Goord, 273 AD2d 571, 572 ; Matter of Monko v Selsky, 246 AD2d at 700).
Peters, P.J., Mercure, Malone Jr., Kavanagh and Egan Jr., JJ., concur.
ORDERED that the judgment is affirmed, without costs.
Robert D. Mayberger Clerk of the Court
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