Opinion
1255 CA 18–00256
12-21-2018
In the Matter of Darrell WALKER, Petitioner–Appellant, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent–Respondent.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER–APPELLANT. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR RESPONDENT–RESPONDENT.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER–APPELLANT.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR RESPONDENT–RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul a determination, after a tier III disciplinary hearing, that he violated various inmate rules. In his answer, respondent requested that the matter be remitted for a new hearing because the recording of the original hearing was inaudible and could not be transcribed, thereby precluding meaningful review of the determination. Supreme Court, inter alia, annulled the determination; deleted from petitioner's record all testimony, decisions, and documents prepared or produced solely as a result of that hearing; and remitted the matter for a de novo hearing to be conducted by a different hearing officer on only those charges of which petitioner was found guilty at the original hearing. Petitioner appeals, contending that the court erred in annulling the determination and remitting the matter to respondent for a new hearing and that, instead, the court should have annulled the determination and expunged from his institutional record all references to the inmate rule violations. We affirm.
Contrary to petitioner's contention, the court properly annulled the determination and remitted the matter for a new hearing under the circumstances presented in this case (cf. Matter of Tolliver v. Fischer, 125 A.D.3d 1023, 1023–1024, 2 N.Y.S.3d 694 [3d Dept. 2015], lv denied 25 N.Y.3d 908, 2015 WL 2237591 [2015] ). "[T]he failure to produce a transcript [does] not involve a substantial evidence issue or implicate any fundamental due process rights," and there are no equitable considerations here that warrant expungement of petitioner's institutional record ( Matter of Auricchio v. Goord, 273 A.D.2d 571, 572, 709 N.Y.S.2d 680 [3d Dept. 2000] ).