| Matter of Roach v Goord |
| 2007 NY Slip Op 09648 [46 AD3d 988] |
| December 6, 2007 |
| Appellate Division, Third Department |
| In the Matter of Paul Roach, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent which found petitionerguilty of violating certain prison disciplinary rules.
Petitioner commenced this proceeding to challenge a tier III disciplinary determinationfinding him guilty of assaulting a staff member, engaging in violent conduct and disobeying adirect order. During the hearing, petitioner testified about a letter which consisted of an apologyby petitioner for causing an investigation of staff members. Petitioner testified that the letter washandwritten by a correction officer; two correction officers then made him copy it and provide itto facility staff. The author of the misbehavior report, also the staff member who petitionerallegedly assaulted, was one of the two correction officers who allegedly forced petitioner tocopy this apology letter. Petitioner informed the Hearing Officer that the original letter wasavailable by fax from either his sister or the District Attorney, but the Hearing Officer did notobtain that document. Being relevant to petitioner's explanation that he was framed by themisbehavior report's author and to that individual's credibility, the letter should have beenobtained for petitioner and admitted into evidence (see 7 NYCRR 254.6 [a] [3];Matter of Perkins v Goord, 257 AD2d 821, 822 [1999]; Matter of Wilson vCoughlin, 186 AD2d 1090, 1090 [1992]; see also Matter of Adams v Coughlin, 202AD2d 1055, 1055 [1994]). Due to the improper exclusion of the letter, we remit for furtherproceedings (see Matter of Perkins v Goord, 257 AD2d at 822; Matter of Webb vCoombe, 232 AD2d 694, 694 [1996]).[*2]
We also note that the record is incomplete, as it fails tocontain petitioner's written submission, which the Hearing Officer acknowledged receiving andreviewing.
Cardona, P.J., Crew III, Peters and Mugglin, JJ., concur. Adjudged that the determination isannulled, without costs, and matter remitted to respondent for further proceedings notinconsistent with this Court's decision.