Calendar Date: June 6, 2013.
Scott Farrell, Comstock, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
Before: Peters, P.J., Stein, McCarthy and Garry, JJ.
MEMORANDUM AND JUDGMENT
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 respondent Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.
After a sample of his urine twice tested positive for the presence of opiates, petitioner was charged in a misbehavior report with using a controlled substance. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Petitioner argues, among other things, that meaningful review is precluded because a significant portion of the hearing was not transcribed. Based upon our review of the transcript, we must agree. It appears from the transcript that only the first side of the audiotape was transcribed as the stenographer made a notation, "[s]econd side of tape not audible-runs on fast speed only, " and then abruptly ended the transcript. We cannot ascertain what was on the second side of the tape or if it would have been beneficial to petitioner's defense (see Matter of Green v Prack, 101 A.D.3d 1203, 1204 ; Matter of La Van v New York State Dept. of Correctional Servs., 47 A.D.3d 1153 ). Notably, the transcript does not reveal the disposition of petitioner's request to have his wife and family members testify as witnesses at the hearing. In view of this, and given the potentially significant testimony that may be missing, the determination must be annulled (see Matter of Tolliver v Fischer, 105 A.D.3d 1239, 1239-1240 ; Matter of Medina v New York State Dept. of Corr. Servs., 104 A.D.3d 976, 977 , lv denied ___ N.Y.3d ___ [June 25, 2013]). However, we do not agree with petitioner that expungement is required and, therefore, we remit the matter for a new hearing (see Matter of Tolliver v Fischer, 105 A.D.3d at 1239-1240).
Peters, P.J., Stein, McCarthy and Garry, JJ., concur.
ADJUDGED that the determination is annulled, without costs, petition granted and matter remitted to respondent Commissioner of Corrections and Community Supervision for further ...