State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 2, 2016 521160
________________________________
In the Matter of TERRANCE
CALDWELL,
Appellant,
v MEMORANDUM AND ORDER
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
Respondent.
________________________________
Calendar Date: April 25, 2016
Before: Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.
__________
Cooper Erving & Savage LLP, Albany (Brian W. Matula of
counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Brian D.
Ginsberg of counsel), for respondent.
__________
Clark, J.
Appeal from a judgment of the Supreme Court (Elliott III,
J.), entered March 9, 2015 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent finding
petitioner guilty of violating certain prison disciplinary rules.
Following a combined tier III disciplinary hearing,
petitioner was found guilty of two counts of assaulting staff,
two counts of interfering with an employee, refusing a direct
order and possessing unauthorized medication. Upon
administrative appeal, the two counts of interfering with an
-2- 521160
employee were dismissed, but the remainder of the determination
was upheld. Petitioner then commenced this CPLR article 78
proceeding to challenge the determination. After respondent
joined issue, Supreme Court dismissed the petition, prompting
this appeal.
Petitioner contends that he was denied the right to have
certain witnesses testify at his disciplinary hearing and that he
received inadequate employee assistance. However, the hearing
transcript is replete with inaudible gaps that preclude our
meaningful review of these issues. Accordingly, the
determination must be annulled and the matter remitted for a new
hearing (see Matter of Hamlett v Kelley, 133 AD3d 992, 992
[2015]; Matter of Nance v Annucci, 132 AD3d 1198, 1198 [2015]).
We note that, under the circumstances, expungement is not the
appropriate remedy (see Matter of Hamlett v Kelley, 133 AD3d at
992-993; Matter of Barnes v Fischer, 108 AD3d 990, 990-991
[2013], lv denied 22 NY3d 855 [2013]; Matter of Hayes v Fischer,
95 AD3d 1587, 1588 [2012]).
Lahtinen, J.P., Rose, Lynch and Aarons, JJ., concur.
ORDERED that the judgment is reversed, on the law, without
costs, determination annulled and matter remitted to respondent
for further proceedings not inconsistent with this Court's
decision.
ENTER:
Robert D. Mayberger
Clerk of the Court