Martin v. Coughlin

Appellate Division of the Supreme Court of New York

Martin v. Coughlin

139 A.D.2d 650, 526 N.Y.S.2d 1018, 1988 N.Y. App. Div. LEXIS 4401

Appellate Division of the Supreme Court of the State of New York·Decided April 18, 1988·Published

Opinion

— In a proceeding pursuant to CPLR article 78 to review a determination of the respondents, dated September 26, 1986, that the petitioner had used an illegal controlled substance in violation of an inmate rule, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Jiudice, J.), entered March 16, 1987, which dismissed the proceeding.

Ordered that the judgment is reversed, on the law, without costs or disbursements, the petition is granted to the extent that the determination is annulled, and the matter is remitted to the respondents for a new Tier III hearing.

The respondents concede, and we agree, that a new Tier III hearing must be held since the petitioner was denied his procedural rights when a witness did not testify in the petitioner’s presence, the petitioner was not given a tape of the testimony and no reason was given for the departure from departmental regulations (7 NYCRR 254.5 [b]). We find no merit to the other contentions raised by the petitioner. Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur.

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— In a proceeding pursuant to CPLR article 78 to review a determination of the respondents, dated September 26, 1986, that the petitioner had used an illegal controlled substance in violation of an inmate rule, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Jiudice, J.), entered March 16, 1987, which dismissed the proceeding.

Ordered that the judgment is reversed, on the law, without costs or disbursements, the petition is granted to the extent that the determination is annulled, and the matter is remitted to the respondents for a new Tier III hearing.

The respondents concede, and we agree, that a new Tier III hearing must be held since the petitioner was denied his procedural rights when a witness did not testify in the petitioner’s presence, the petitioner was not given a tape of the testimony and no reason was given for the departure from departmental regulations (7 NYCRR 254.5 [b]). We find no merit to the other contentions raised by the petitioner. Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur.

Martin v. Coughlin, 139 A.D.2d 650, 526 N.Y.S.2d 1018, 1988 N.Y. App. Div. LEXIS 4401 (N.Y. Ct. App. 1988).

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139 A.D.2d 650 (Martin v. Coughlin) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.