| Matter of La Van v New York State Dept. of CorrectionalServs. |
| 2008 NY Slip Op 00405 [47 AD3d 1153] |
| January 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Khasim Usama Kenyetta La Van, Petitioner, v NewYork State Department of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady 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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with making threats, interfering with anemployee, harassment and creating a disturbance. Following a tier III disciplinary hearing, he wasfound guilty of creating a disturbance and harassment. On administrative appeal, respondentdismissed the harassment charge and reduced the penalty imposed. Petitioner then commencedthis CPLR article 78 proceeding.
The hearing transcript is incomplete. The testimony of at least one witness, a correctionofficer, is missing entirely, as are any closing comments by petitioner. Petitioner asserts that thetestimony of this correction officer supports his defense. The absence of a potentially significantportion of the transcript precludes meaningful review (see Matter of Douglas v Goord, 24 AD3d 922, 923 [2005]; Matter of Allen v Goord, 14 AD3d961, 962 [2005]; compare Matter ofDaniels v Goord, 31 AD3d 1076, 1077 [2006]). Accordingly, we annul theCommissioner's determination and remit for a new hearing on the one remaining charge.
Mercure, J.P., Spain, Carpinello, Rose and Kane, JJ., concur. Adjudged that thedetermination is annulled, without costs, petition granted and matter remitted to theCommissioner of Correctional Services for further proceedings not inconsistent with this Court'sdecision.