Opinion
2013-04-18
In the Matter of Eric TOLLIVER, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Eric Tolliver, Romulus, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Eric Tolliver, Romulus, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: ROSE, J.P., LAHTINEN, STEIN 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was allegedly observed having sex with a visitor and, accordingly, was charged in a misbehavior report with violating the prison disciplinary rules prohibiting sexual acts and the creation of a disturbance. He was found guilty as charged following a tier III disciplinary hearing, and that determination was affirmed upon administrative appeal. Petitioner then commenced this CPLR article 78 proceeding.
Meaningful review by this Court is precluded because the hearing transcript is incomplete in significant respects ( see Matter of White v. Fischer, 73 A.D.3d 1372, 1373, 900 N.Y.S.2d 695 [2010];Matter of La Van v. New York State Dept. of Correctional Servs., 47 A.D.3d 1153, 1153, 850 N.Y.S.2d 285 [2008] ). The missing testimony included, among other things, that of a correction officer who was working in the visiting area and observed no improper behavior on the part of petitioner. Inasmuch as that testimony was requested by petitioner and was cited by the Hearing Officer as a factor considered in rendering the determination of guilt, the failure to record it requires annulment ( see Matter of La Van v. New York State Dept. of Correctional Servs., 47 A.D.3d at 1153, 850 N.Y.S.2d 285;Matter of Douglas v. Goord, 24 A.D.3d 922, 923, 806 N.Y.S.2d 270 [2005] ). We are unpersuaded by petitioner's contention that expungement is required here and, thus, remit the matter for a new hearing ( see Matter of Hayes v. Fischer, 95 A.D.3d 1587, 1588, 944 N.Y.S.2d 800 [2012];Matter of Auricchio v. Goord, 273 A.D.2d 571, 572, 709 N.Y.S.2d 680 [2000] ).
ADJUDGED that the determination is annulled, without costs, petition granted and matter remitted to respondent for further proceedings not inconsistent with this Court's decision.