Matter of Nance v Annucci

Matter of Nance v Annucci 2015 NY Slip Op 07887 Decided on October 29, 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: October 29, 2015
520347

[*1]In the Matter of MARKEL NANCE, Petitioner,

v

ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: September 22, 2015
Before: Peters, P.J., Lahtinen, Rose and Lynch, JJ.

Markel Nance, Comstock, petitioner pro se.

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

MEMORANDUM AND JUDGMENT

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.