Opinion
518816.
02-05-2015
In the Matter of Eric TOLLIVER, Appellant, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Eric Tolliver, Fallsburg, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Eric Tolliver, Fallsburg, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, EGAN JR. and DEVINE, JJ.
Opinion Appeal from a judgment of the Supreme Court (Teresi, J.), entered April 11, 2014 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner commenced this CPLR article 78 proceeding to challenge a determination finding him guilty of violating two prison disciplinary rules. Supreme Court dismissed the petition. Because we are precluded from conducting a meaningful review due to transcription errors, we reverse (see Matter of Tolliver v. Fischer, 105 A.D.3d 1239, 1239, 962 N.Y.S.2d 828 [2013] ). Sections of the transcript of the disciplinary hearing are clearly out of order, as noted by the nonchronological dates recited by the Hearing Officer. Portions of questioning of at least two witnesses appear to be missing, although the extent of the missing information is unclear. Petitioner was permitted to read what was described as a three-page statement into the record, but his recitation is cut off mid-sentence at the bottom of a page; the Hearing Officer cited this statement as evidence that he relied upon in rendering his decision. Although expungement is not required here, the failure to properly record the entire hearing, including potentially significant evidence, requires annulment and remittal for a new hearing (see id. at 1239–1240, 962 N.Y.S.2d 828 ; Matter of La Van v. New York State Dept. of Correctional Servs., 47 A.D.3d 1153, 1153, 850 N.Y.S.2d 285 [2008] ; Matter of Douglas v. Goord, 24 A.D.3d 922, 923, 806 N.Y.S.2d 270 [2005] ).
ORDERED that the judgment is reversed, on the law, without costs, petition granted, determination annulled and matter remitted to respondent for further proceedings not inconsistent with this Court's decision.