Opinion
06-02-2016
In the Matter of Terrance CALDWELL, Appellant, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Cooper Erving & Savage LLP, Albany (Brian W. Matula of counsel), for appellant. Eric T. Schneiderman, Attorney General, Albany (Brian D. Ginsberg of counsel), for respondent.
Cooper Erving & Savage LLP, Albany (Brian W. Matula of counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Brian D. Ginsberg of counsel), for respondent.
Before: LAHTINEN, J.P., ROSE, LYNCH, CLARK and AARONS, JJ.
CLARK, J. Appeal from a judgment of the Supreme Court (Elliott III, J.), entered March 9, 2015 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
Following a combined tier III disciplinary hearing, petitioner was found guilty of two counts of assaulting staff, two counts of interfering with an employee, refusing a direct order and possessing unauthorized medication. Upon administrative appeal, the two counts of interfering with an employee were dismissed, but the remainder of the determination was upheld. Petitioner then commenced this CPLR article 78 proceeding to challenge the determination. After respondent joined issue, Supreme Court dismissed the petition, prompting this appeal.
Petitioner contends that he was denied the right to have certain witnesses testify at his disciplinary hearing and that he received inadequate employee assistance. However, the hearing transcript is replete with inaudible gaps that preclude our meaningful review of these issues. Accordingly, the determination must be aned and the matter remitted for a new hearing (see Matter of Hamlett v. Kelley, 133 A.D.3d 992, 992, 18 N.Y.S.3d 887 [2015] ; Matter of Nance v. Annucci, 132 A.D.3d 1198, 1198, 18 N.Y.S.3d 364 [2015] ). We note that, under the circumstances, expungement is not the appropriate remedy (see Matter of Hamlett v. Kelley, 133 A.D.3d at 992–993, 18 N.Y.S.3d 887 ; Matter of Barnes v. Fischer, 108 A.D.3d 990, 990–991, 968 N.Y.S.2d 916 [2013], lv. denied 22 N.Y.3d 855, 2013 WL 6065925 [2013] ; Matter of Hayes v. Fischer, 95 A.D.3d 1587, 1588, 944 N.Y.S.2d 800 [2012] ).
ORDERED that the judgment is reversed, on the law, without costs, determination aned and matter remitted to respondent for further proceedings not inconsistent with this Court's decision.
LAHTINEN, J.P., ROSE, LYNCH and AARONS, JJ., concur.