Matter of Nance v. Annucci

132 A.D.3d 1198, 18 N.Y.S.3d 364

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 29, 2015
• Docket: 520347
• Status: Published

Opinion

Proceeding 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 commenced this CPLR article 78 proceeding challenging a disciplinary determination finding him guilty of violating two disciplinary rules. Petitioner contends, among other things, that the Hearing Officer erred in failing to ascertain why a requested inmate had refused to testify. Respondent concedes, and we agree, that inaudible gaps in the disciplinary hearing transcript preclude meaningful review of that issue. Although the determination must be annulled, remittal for a new hearing, rather than expungement, is the appropriate remedy under the circumstances (see Matter of Nova v Fischer, 112 AD3d 1234, 1234 [2013], lv denied 22 NY3d 866 [2014]; Matter of Farrell v New York State Off. of the Attorney Gen., 108 AD3d 801, 802 [2013]).

Peters, P.J., Lahtinen, Rose and Lynch, JJ., concur.

Adjudged that the determination is annulled, without costs, petition granted and matter remitted to respondent for further proceedings not inconsistent with this Court’s decision.