Opinion
2014-03-20
In the Matter of Markeith BOYD, Appellant, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Markeith Boyd, Wallkill, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Markeith Boyd, Wallkill, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Appeal from a judgment of the Supreme Court (Breslin, J.), entered April 4, 2013 in Albany County, which granted respondent's motion to annul the determination and remit for a new hearing.
Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating various disciplinary rules. Respondent moved to, among other things, remit the matter for a new hearing given that a substantial portion of the hearing was inaudible and could not be transcribed. Supreme Court granted respondent's motion. Petitioner now appeals, contending that expungement of the administrative determination, as opposed to remittal, is the appropriate remedy.
We disagree. “[T]he failure to produce a transcript [does] not involve a substantial evidence issue or implicate any fundamental due process rights” (Matter of Auricchio v. Goord, 273 A.D.2d 571, 572, 709 N.Y.S.2d 680 [2000] ). As we find no equitable considerations herein to warrant expungement rather than remittal for a new hearing, Supreme Court's judgment will not be disturbed ( see Matter of Tolliver v. Fischer, 105 A.D.3d 1239, 1240, 962 N.Y.S.2d 828 [2013];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 at 572, 709 N.Y.S.2d 680).
ORDERED that the judgment is affirmed, without costs. LAHTINEN, J.P., McCARTHY, GARRY and ROSE, JJ., concur.