From Casetext: Smarter Legal Research

Barnes v. Fischer

Supreme Court, Appellate Division, Third Department, New York.
Jul 25, 2013
108 A.D.3d 990 (N.Y. App. Div. 2013)

Opinion

2013-07-25

In the Matter of Arrello BARNES, Appellant, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Arrello Barnes, Attica, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.


Arrello Barnes, Attica, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Cahill, J.), entered August 9, 2012 in Albany County, which, in a proceeding pursuant to CPLR article 78, among other things, granted respondent's motion to annul his determination and remit for a new hearing.

In October 2011, petitioner was found guilty of violent conduct, assault on an inmate, possessing a weapon and engaging in gang activity following a tier III disciplinary hearing. He thereafter commenced this CPLR article 78 proceeding challenging that determination. After being informed that only a partial recording of the disciplinary hearing could be located, respondent moved to annul the determination and have the matter remitted for a new hearing. Petitioner cross-moved to dismiss and have the determination expunged from his institutional record. Supreme Court thereafter granted respondent's motion, annulling the challenged determination and remitting the matter for a new disciplinary hearing. Based upon this determination, the court denied petitioner's cross motion as moot and dismissed the petition. Petitioner appeals.

We affirm. Petitioner's sole contention on appeal is that Supreme Court should have ordered expungement of the disciplinary determination from his prison record instead of a new hearing. We disagree. It is well settled that “[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 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); or (3) other equitable considerations dictate expungement of the record rather than remittal for a new hearing’ ” (Matter of Monko v. Selsky, 246 A.D.2d 699, 700, 667 N.Y.S.2d 480 [1998], quoting Matter of Hillard v. Coughlin, 187 A.D.2d 136, 140, 593 N.Y.S.2d 573 [1993],lv. denied82 N.Y.2d 651, 601 N.Y.S.2d 580, 619 N.E.2d 658 [1993];accord. Matter of Hayes v. Fischer, 95 A.D.3d 1587, 1588, 944 N.Y.S.2d 800 [2012] ). None of the foregoing situations is implicated here. Accordingly, Supreme Court properly ordered a new hearing ( see Matter of Hayes v. Fischer, 95 A.D.3d at 1588, 944 N.Y.S.2d 800;Matter of Auricchio v. Goord, 273 A.D.2d 571, 572, 709 N.Y.S.2d 680 [2000];Matter of Monko v. Selsky, 246 A.D.2d at 700, 667 N.Y.S.2d 480).

ORDERED that the judgment is affirmed, without costs.

PETERS, P.J., LAHTINEN, SPAIN and GARRY, JJ., concur.


Summaries of

Barnes v. Fischer

Supreme Court, Appellate Division, Third Department, New York.
Jul 25, 2013
108 A.D.3d 990 (N.Y. App. Div. 2013)
Case details for

Barnes v. Fischer

Case Details

Full title:In the Matter of Arrello BARNES, Appellant, v. Brian FISCHER, as…

Court:Supreme Court, Appellate Division, Third Department, New York.

Date published: Jul 25, 2013

Citations

108 A.D.3d 990 (N.Y. App. Div. 2013)
968 N.Y.S.2d 916
2013 N.Y. Slip Op. 5483

Citing Cases

Williams v. Annucci

Accordingly, this Court finds that reversal and expungement is the proper remedy. In this regard it is noted…

Torres v. Annucci

ng necessary to reverse the disciplinary determination in question, the Court turns to the question of…