Opinion
11-12-2015
In the Matter of John HAMLETT, Petitioner, v. Lieutenant KELLEY, as Hearing Officer, et al., Respondents.
John Hamlett, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
John Hamlett, Comstock, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
Opinion Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of the Superintendent of Clinton Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner commenced this CPLR article 78 proceeding challenging a tier II disciplinary determination finding him guilty of refusing a direct order, violating lock-in procedures and delaying the inmate count. One of the two audiotapes of the disciplinary hearing was inaudible and unable to be transcribed. Although the determination must be annulled due to the incomplete transcript (see Matter of Torres v. Prack, 95 A.D.3d 1518, 1519, 944 N.Y.S.2d 400 [2012] ), we are unpersuaded by petitioner's contention that expungement is required. Because “the failure to produce a transcript did not involve a substantial evidence issue or implicate any fundamental due process rights” (Matter of Jones v. Fischer, 110 A.D.3d 1295, 1296, 974 N.Y.S.2d 162 [2013], appeal dismissed 23 N.Y.3d 955, 988 N.Y.S.2d 124, 11 N.E.3d 198 [2014] [internal quotation marks and citations omitted]; see Matter of Farrell v. New York State Off. of
the Attorney Gen., 108 A.D.3d 801, 802, 968 N.Y.S.2d 253 [2013] ), and there are no other equitable considerations to warrant expungement, remittal for a new hearing is the appropriate remedy (see 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] ).
ADJUDGED that the determination is annulled, without costs, and matter remitted to the Superintendent of Clinton Correctional Facility for further proceedings not inconsistent with this Court's decision.
PETERS, P.J., GARRY, DEVINE and CLARK, JJ., concur.