Opinion
988 TP 17-00519.
10-06-2017
In the Matter of Quayshaun HUBBARD, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Leah R. Nowotarski of Counsel), for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of Counsel), for Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Leah R. Nowotarski of Counsel), for Petitioner.
Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of Counsel), for Respondent.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III hearing, that he violated various inmate rules. As respondent correctly concedes, the determination that petitioner violated inmate rules 101.10 ( 7 NYCRR 270.2 [B] [2][i] [engaging in sexual acts] ) and 180.10 ( 7 NYCRR 270.2 [B][26][i] [violating a visitation procedure] ) must be annulled. Petitioner was deprived of his right to reply to the evidence against him with respect to those charges because of the unexplained unavailability for use at the disciplinary hearing of the videotape that allegedly depicted his violations thereof (see Matter of Marquez v. Mann, 192 A.D.2d 100, 103–104, 600 N.Y.S.2d 285 ; see generally Matter of Tolliver v. Fischer, 125 A.D.3d 1023, 1023–1024, 2 N.Y.S.3d 694, lv. denied 25 N.Y.3d 908, 2015 WL 2237591 ; Matter of Farrell v. New York State Off. of the Attorney Gen., 108 A.D.3d 801, 801–802, 968 N.Y.S.2d 253 ). We therefore modify the determination accordingly, and we direct respondent to expunge from petitioner's institutional record all references thereto. Inasmuch as petitioner has already served the penalty and there was no recommended loss of good time, there is no need to remit the matter to respondent for reconsideration of the penalty (see Matter of Washington v. Annucci, 150 A.D.3d 1700, 1701, 53 N.Y.S.3d 451 ; Matter of Reid v. Saj, 119 A.D.3d 1445, 1446, 990 N.Y.S.2d 398 ).
It is hereby ORDERED that the determination so appealed from is unanimously modified on the law and the petition is granted in part by annulling that part of the determination finding that petitioner violated inmate rules 101.10 ( 7 NYCRR 270.2 [B][2][i] ) and 180.10 ( 7 NYCRR 270.2 [B][26][i] ) and as modified the determination is confirmed without costs and respondent is directed to expunge from petitioner's institutional record all references to the violation of those inmate rules.