Opinion
2014-05-15
In the Matter of Marlo CARTER, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Marlo Carter, Oriskany, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Marlo Carter, Oriskany, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
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.
Following a six-month investigation, petitioner was charged in a misbehavior report with violating the prison disciplinary rules that prohibit unauthorized exchange, drug possession, smuggling, stealing and extortion. Following a tier III disciplinary hearing, petitioner was found guilty of unauthorized exchange, drug possession and smuggling and not guilty of the remaining charges. Petitioner's administrative appeal was unsuccessful, prompting this CLR article 78 proceeding.
Initially, we note that petitioner has abandoned his challenge to the finding of guilt with respect to unauthorized exchange inasmuch as his brief is limited to challenging the smuggling and drug possession charges ( see Matter of Staine v. Fischer, 111 A.D.3d 999, 999, 974 N.Y.S.2d 302 [2013] ). With respect to those charges, a portion of the confidential testimony that was relied heavily upon by the Hearing Officer in rendering the determination was unavailable because the recording was indecipherable, thereby precluding us from undertaking a meaningful review ( see Matter of Gallagher v. Fischer, 108 A.D.3d 802, 802, 967 N.Y.S.2d 787 [2013] ). Accordingly, the determination must be annulled to that extent and the matter remitted for a new hearing upon those charges ( see Matter of Medina v. New York State Dept. of Corr. Servs., 104 A.D.3d 976, 977, 961 N.Y.S.2d 339 [2013],lv. denied21 N.Y.3d 859, 2013 WL 3186554 [2013] ).
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of smuggling and possessing drugs; petition granted to that extent, and matter remitted to respondent for an administrative redetermination of the penalty imposed upon the remaining sustained charge and for further proceedings not inconsistent with this Court's decision; and, as so modified, confirmed. LAHTINEN, J.P., STEIN, GARRY and EGAN JR., JJ., concur.