Opinion
11-18-2016
In the Matter of Bryan MEDINA, Petitioner–Respondent, v. Anthony J. ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent–Appellant.
Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of Counsel), for respondent-appellant. Karen Murtagh, Executive Director, Prisoners' Legal Services of New York, Buffalo (David W. Bentivegna of Counsel), for petitioner-respondent.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County (John L. Michalski, A.J.), entered July 7, 2015 in a proceeding pursuant to CPLR article 78. The judgment directed respondent to expunge from petitioner's institutional record all references to the incident underlying this special proceeding.
Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of Counsel), for respondent-appellant.
Karen Murtagh, Executive Director, Prisoners' Legal Services of New York, Buffalo (David W. Bentivegna of Counsel), for petitioner-respondent.
MEMORANDUM:
Contrary to respondent's contention, Supreme Court properly determined upon reargument that expungement of all references to the underlying incident from petitioner's institutional record, rather than remittal for a new hearing, was the appropriate remedy for the violation of petitioner's fundamental right to be present at his disciplinary hearing (see Matter of Brooks v. James, 105 A.D.3d 1233, 1234, 963 N.Y.S.2d 462 ; Matter of Rush v. Goord, 2 A.D.3d 1185, 1186, 770 N.Y.S.2d 191 ; see also Matter of Bowen v. Coombe, 239 A.D.2d 960, 960–961, 659 N.Y.S.2d 600 ). This is not a case in which the record is unclear with respect to whether petitioner's right to be present was in fact violated (cf. Matter of Texeira v. Fischer, 26 N.Y.3d 230, 234–235, 22 N.Y.S.3d 148, 43 N.E.3d 358 ; Matter of Shoga v. Annucci, 132 A.D.3d 1338, 1339, 17 N.Y.S.3d 816 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
WHALEN, P.J., SMITH, DeJOSEPH, NEMOYER, and TROUTMAN, JJ., concur.