McDonald v. Coughlin

—Yesawich Jr., J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. [771] In January 1994, petitioner, an inmate at Great Meadow Correctional Facility in Washington County, was charged with extortion and threatening a fellow inmate. A tier III disciplinary hearing was held, at the conclusion of which the charges were sustained and a penalty imposed. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding seeking to annul respondent’s determination on several grounds, only one of which merits discussion. During the course of the hearing, the Hearing Officer accidently erased approximately 13 minutes of the taped record of the proceedings, including the majority of the testimony adduced from Maurice Ruffin, one of petitioner’s witnesses, as well as some of that furnished by petitioner himself. Upon discovering this gap, the Hearing Officer gave petitioner and Ruffin an opportunity to restate their testimony; each refused to do so, petitioner claiming that he had forgotten what he said, and Ruffin insisting that he had already testified. Petitioner contends he was unduly prejudiced by this omission from the record and that annullment of the resulting determination is warranted as a result. We are, however, unpersuaded, for even if the gap in petitioner’s testimony, and the complete loss of Ruffin’s—who, it is asserted, would have testified that the complainant fabricated his claims of having been threatened to secure a transfer from the facility—cannot be considered harmless, petitioner has nevertheless received all of the consideration to which he is lawfully entitled, namely, an opportunity to recreate his defense. In this regard, it bears noting that if a new hearing had been held as a result of the incomplete record (see, e.g., Matter of Dupree v Scully, 100 AD2d 966, 967) and Ruffin had refused to testify thereat, the Hearing Officer’s "meaningful effort” to persuade him to do so, which was rebuked, would have clearly satisfied the officer’s obligation to call witnesses requested by petitioner (see, 7 NYCRR 254.5; Matter of Salcedo v Coughlin, 197 AD2d 729, 730; Matter of Maier v Mann, 187 AD2d 850, 851). In that event, the Hearing Officer would have been fully justified in rendering a decision on the basis of the evidence actually elicited at the second hearing, and we would not hesitate to review the propriety of that resulting decision without regard for what transpired at the first hearing. Thus, inasmuch as the decision rendered herein is, in fact, fully supported by the record evidence, and petitioner had an opportunity to re-present all the proof he could obtain in support of his defense, he is not entitled to annulment of the determination. [772] Mikoll, J. P., and White, J., concur.