| Matter of White v Fischer |
| 2010 NY Slip Op 04314 [73 AD3d 1372] |
| May 20, 2010 |
| Appellate Division, Third Department |
| In the Matter of John H. White, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. (And Another RelatedProceeding.) |
—[*1]
Stein, J. Proceedings pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
According to a misbehavior report, a correction sergeant ordered petitioner out of line whilehe was en route to recreation and a correction officer directed that he submit to a pat frisk.Petitioner refused to comply and, when the correction officer attempted to move petitioner intoposition, petitioner punched the correction officer on the left side of his face. Following a tier IIIdisciplinary hearing stemming from the incident, petitioner was found guilty of violent conduct,refusing a direct order, violating frisk procedures and assaulting staff. The determination wasupheld on administrative appeal, prompting these CPLR article 78 proceedings.[FN*][*2]
Meaningful review by this Court is precluded because thehearing transcript is incomplete (seeMatter of La Van v New York State Dept. of Correctional Servs., 47 AD3d 1153, 1153[2008]). Although the Hearing Officer cited the testimony of the correction sergeant—oneof the witnesses requested by petitioner—as one of the factors considered in rendering thedetermination of guilt, such testimony is missing entirely. As discrepancies in the record renderthe correction sergeant's testimony potentially significant, we annul respondent's determinationand remit the matter for a new hearing (see id.; see generally Matter of Douglas v Goord, 24 AD3d 922, 923[2005]; Matter of Allen v Goord,14 AD3d 961, 962 [2005]).
Peters, J.P., Rose, McCarthy and Garry, JJ., concur. Adjudged that the determination isannulled, without costs, petitions granted, respondent is directed to expunge all references to thismatter from petitioner's institutional record and matter remitted to respondent for furtherproceedings not inconsistent with this Court's decision.
Footnote *: Petitioner commenced twoCPLR article 78 proceedings challenging the same administrative determination. The petitionshave been joined in this Court.