Calendar Date: October 29, 2012
Before: Peters, P.J., Lahtinen, Kavanagh, Stein and Egan Jr., 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 Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
A correction officer observed petitioner in possession of an envelope while in the law library. He noticed petitioner reach toward the top of a book shelf and then leave the area without the envelope in hand. The officer retrieved the envelope from the top of the book shelf and found a 12-inch metal rod inside. As a result, petitioner was charged in a misbehavior report with possessing an unauthorized item, possessing an item in an unauthorized area, destroying state property and smuggling.
He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Petitioner contends, among other things, that the transcript of the disciplinary hearing does not include the testimony of a correction sergeant who allegedly made a statement that petitioner did not possess the envelope containing the metal rod and that this deprived petitioner of due process. It appears from the record that the Hearing Officer agreed to have this individual testify at the hearing but, as respondent concedes, such testimony is inexplicably missing from the disciplinary hearing transcript. Inasmuch as it is impossible to ascertain if such testimony would have been exculpatory and supported petitioner's defense, we conclude that its absence precludes meaningful review (see Matter of Torres v Prack, 95 AD3d 1518, 1519 ; Matter of LaVan v New York State Dept. of Correctional Servs., 47 AD3d 1153, 1153 ). Therefore, the determination must be annulled and the matter remitted for a new hearing. Petitioner's remaining claims are either lacking in merit or need not be addressed in light of our disposition.
Peters, P.J., Lahtinen, Kavanagh, Stein and Egan Jr., JJ., concur.
ADJUDGED that the determination is annulled, without costs, petition granted and matter remitted to the Commissioner of Corrections and Community Supervision for further proceedings not inconsistent with this Court's decision.
Robert D. Mayberger Clerk of the Court
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