Matter of Hamlett v Kelley

Matter of Hamlett v Kelley 2015 NY Slip Op 08213 Decided on November 12, 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: November 12, 2015
519885

[*1]In the Matter of JOHN HAMLETT, Petitioner,

v

LIEUTENANT KELLEY, as Hearing Officer, et al., Respondents.

Calendar Date: September 22, 2015
Before: Peters, P.J., Garry, Devine and Clark, JJ.

John Hamlett, Comstock, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of the Superintendent of Clinton Correctional Facility finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging a tier II disciplinary determination finding him guilty of refusing a direct order, violating lock-in procedures and delaying the inmate count. One of the two audiotapes of the disciplinary hearing was inaudible and unable to be transcribed. Although the determination must be annulled due to the incomplete transcript (see Matter of Torres v Prack, 95 AD3d 1518, 1519 [2012]), we are unpersuaded by petitioner's contention that expungement is required. Because "the failure to produce a transcript did not involve a substantial evidence issue or

implicate any fundamental due process rights" (Matter of Jones v Fischer, 110 AD3d 1295, 1296 [2013], appeal dismissed 23 NY3d 955 [2014] [internal quotation marks and citations omitted]; see Matter of Farrell v New York State Off. of the Attorney Gen., 108 AD3d 801, 802 [2013]), and there are no other equitable considerations to warrant expungement, remittal for a new hearing is the appropriate remedy (see Matter of Barnes v Fischer, 108 AD3d 990, 990-991 [2013], lv denied 22 NY3d 855 [2013]; Matter of Hayes v Fischer, 95 AD3d 1587, 1588 [2012]).

Peters, P.J., Garry, Devine and Clark, JJ., concur.

ADJUDGED that the determination is annulled, without costs, and matter remitted to the Superintendent of Clinton Correctional Facility for further proceedings not inconsistent with this Court's decision.