Opinion
43 TP 15-00056.
02-05-2016
In the Matter of Anthony MEDINA, Petitioner, v. Michael SHEAHAN, Superintendent, Five Points Correctional Facility, Respondent.
Anthony Medina, Petitioner Pro Se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent.
Anthony Medina, Petitioner Pro Se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent.
Opinion
MEMORANDUM:
Petitioner commenced this proceeding seeking to annul a determination finding him guilty of violating various inmate rules and imposing a penalty. “Because the petition did not raise a substantial evidence issue, Supreme Court erred in transferring the proceeding to this Court” (matter of nieves v. GOORD, 262 A.d.2d 1042, 1042, 693 n.y.s.2d 361; see CPLR 7804[g]; Matter of Wearen v. Deputy Supt. Bish, 2 A.D.3d 1361, 1362, 768 N.Y.S.2d 874). We nevertheless address the issues raised in the interest of judicial economy (see Nieves, 262 A.D.2d at 1042, 693 N.Y.S.2d 361).
Petitioner, who is visually impaired, contends that he was not provided with a reasonable accommodation for his disability in these disciplinary proceedings (see generally 42 U.S.C. §§ 12132, 12133; Pennsylvania Dept. of Corr. v. Yeskey, 524 U.S. 206, 208–212, 118 S.Ct. 1952, 141 L.Ed.2d 215). Respondent correctly concedes that the record fails to establish that petitioner was provided with sufficiently enlarged copies of the misbehavior reports or offered sufficient magnification to assist in reading them, and thus the record does not establish that respondent took the requisite steps that would “enable him to have comprehended the charges against him and to understand and knowledgeably participate in the hearing[ ]” (matter of wonG v. coughLIN, 138 a.D.2d 899, 900, 526 N.Y.S.2d 640; cf. Matter of McFadden v. Prack, 120 A.D.3d 853, 854–855, 990 N.Y.S.2d 376, lv. dismissed 24 N.Y.3d 930, 993 N.Y.S.2d 542, 17 N.E.3d 1138, lv. denied 24 N.Y.3d 908, 2014 WL 5394013).
Contrary to petitioner's further contention, we conclude that he is not entitled to expungement of his institutional record. The record establishes that respondent had provided petitioner with a CCTV magnifier that met his needs, but it was broken during the incident that was the subject of these proceedings and the parts to repair it had not yet arrived. The record also establishes that other methods of magnifying the documents were attempted, although the record does not establish that they were successful. Therefore, because “a good faith reason for the denial [of petitioner's rights] appears on the record, this amounts to a regulatory violation” rather than a violation of petitioner's constitutional rights, “requiring that the matter be remitted for a new hearing” (Matter of Morris–Hill v. Fischer, 104 A.D.3d 978, 978, 960 N.Y.S.2d 273; see generally Matter of Johnson v. Prack, 122 A.D.3d 1323, 1324, 994 N.Y.S.2d 757). We therefore annul the determination, grant the petition in part and remit the matter to respondent for a new hearing (see e.g. Matter of Shoga v. Annucci, 132 A.D.3d 1338, 1339, 17 N.Y.S.3d 816).
It is hereby ORDERED that the determination is unanimously annulled on the law without costs, the petition is granted in part and the matter is remitted to respondent for further proceedings.