Matter of Tolliver v Fischer

Matter of Tolliver v Fischer 2015 NY Slip Op 00931 Decided on February 5, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 5, 2015
518816

[*1]In the Matter of ERIC TOLLIVER, Appellant,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: December 2, 2014
Before: Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ.

Eric Tolliver, Fallsburg, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.

MEMORANDUM AND ORDER

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 AD3d 1239, 1239 [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; Matter of La Van v New York State Dept. of Correctional Servs., 47 AD3d 1153, 1153 [2008]; Matter of Douglas v Goord, 24 AD3d 922, 923 [2005]).

Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ., concur.

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.