Green v. Prack

101 A.D.3d 1203, 955 N.Y.2d 675

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 2012
• Status: Published

Opinion

Petitioner contends, among other things, that the transcript of the disciplinary hearing does not include the testimony of a correction sergeant who allegedly made a statement that petitioner did not possess the envelope containing the metal rod and that this deprived petitioner of due process. It appears from the record that the Hearing Officer agreed to have this individual testify at the hearing but, as respondent concedes, such testimony is inexplicably missing from the disciplinary hearing transcript. Inasmuch as it is impossible to ascertain if such testimony would have been exculpatory and supported petitioner’s defense, we conclude that its absence precludes meaningful review (see Matter of Torres v Track, 95 AD3d 1518, 1519 [2012]; Matter of La Van v New York State Dept. of Correctional Servs., 47 AD3d 1153, 1153 [2008]). Therefore, the determination must be annulled and the matter remitted for a new hearing. Petitioner’s remaining claims are either lacking in merit or need not be addressed in light of our disposition.

Peters, P.J., Lahtinen, Kavanagh, Stein and Egan Jr., JJ., concur. Adjudged that the determination is annulled, without costs, petition granted and matter remitted to the Commissioner of Corrections and Community Supervision for further proceedings not inconsistent with this Court’s decision.