Opinion
524869
12-07-2017
In the Matter of Derrick HUGHES, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Derrick Hughes, Romulus, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel) for respondent.
Derrick Hughes, Romulus, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel) for respondent.
Before: Peters , P.J., Garry , Rose , Clark and Rumsey , JJ.
MEMORANDUM AND JUDGMENTProceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with creating a disturbance, refusing a direct order, making threats, engaging in violent conduct, engaging in a demonstration, interfering with an employee and rioting. After a tier III disciplinary hearing, petitioner was found guilty of the charges, and that determination was upheld on administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding.Respondent concedes, and we agree, that pervasive inaudible gaps in the disciplinary hearing transcript preclude meaningful review. Therefore, the determination must be annulled and the matter remitted for a new hearing (see Matter ofCaldwell v. Annucci, 140 A.D.3d 1248, 1248–1249, 30 N.Y.S.3d 924 [2016]; Matter ofBarnes v. Fischer, 108 A.D.3d 990, 990–991, 968 N.Y.S.2d 916 [2013], lv denied 22 N.Y.3d 855, 979 N.Y.S.2d 561, 2 N.E.3d 929 [2013] ; Matter ofLa Van v. New York State Dept. of Correctional Servs., 47 A.D.3d 1153, 1153, 850 N.Y.S.2d 285 [2008] ).
ADJUDGED that the determination is annulled, without costs, and matter remitted to respondent for further proceedings not inconsistent with this Court's decision.
Peters, P.J., Garry, Rose, Clark and Rumsey, JJ., concur.