La Van v. New York State Department of Correctional Services

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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was charged in a misbehavior report with making threats, interfering with an employee, harassment and creating a disturbance. Following a tier III disciplinary hearing, he was found guilty of creating a disturbance and harassment. On administrative appeal, respondent dismissed the harassment charge and reduced the penalty imposed. Petitioner then commenced this CPLR article 78 proceeding. The hearing transcript is incomplete. The testimony of at least one witness, a correction officer, is missing entirely, as are any closing comments by petitioner. Petitioner asserts that the testimony of this correction officer supports his defense. The absence of a potentially significant portion of the transcript precludes meaningful review (see Matter of Douglas v Goord, 24 AD3d 922, 923 [2005]; Matter of Allen v Goord, 14 AD3d 961, 962 [2005]; compare Matter of Daniels v Goord, 31 AD3d 1076, 1077 [2006]). Accordingly, we annul the Commissioner’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 the determination is annulled, without costs, petition granted and matter remitted to the Commissioner of Correctional Services for further proceedings not inconsistent with this Court’s decision.