State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 29, 2015 520347
________________________________
In the Matter of MARKEL NANCE,
Petitioner,
v
MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
Respondent.
________________________________
Calendar Date: September 22, 2015
Before: Peters, P.J., Lahtinen, Rose and Lynch, JJ.
__________
Markel Nance, Comstock, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondent.
__________
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 respondent finding petitioner guilty of
violating certain prison disciplinary rules.
Petitioner commenced this CPLR article 78 proceeding
challenging a disciplinary determination finding him guilty of
violating two disciplinary rules. Petitioner contends, among
other things, that the Hearing Officer erred in failing to
ascertain why a requested inmate had refused to testify.
Respondent concedes, and we agree, that inaudible gaps in the
disciplinary hearing transcript preclude meaningful review of
that issue. Although the determination must be annulled,
remittal for a new hearing, rather than expungement, is the
appropriate remedy under the circumstances (see Matter of Nova v
-2- 520347
Fischer, 112 AD3d 1234, 1234 [2013], lv denied 22 NY3d 866
[2014]; Matter of Farrell v New York State Off. of the Attorney
Gen., 108 AD3d 801, 802 [2013]).
Peters, P.J., Lahtinen, Rose and Lynch, JJ., concur.
ADJUDGED that the determination is annulled, without costs,
petition granted and matter remitted to respondent for further
proceedings not inconsistent with this Court's decision.
ENTER:
Robert D. Mayberger
Clerk of the Court