________________________________________

Matter of Roach v Goord
2007 NY Slip Op 09648
Decided on December 6, 2007
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided and Entered: December 6, 2007

502259
[*1]In the Matter of PAUL ROACH, Petitioner,

v

GLENN S. GOORD, as Commissioner of Correctional Services, Respondent.


Calendar Date: October 29, 2007
Before: Cardona, P.J., Crew III, Peters, Mugglin and Kane, JJ.


Paul Roach, Attica, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Peter
H. Schiff of counsel), for respondent.


MEMORANDUM AND JUDGMENT
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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this proceeding to challenge a tier III disciplinary determination finding him guilty of assaulting a staff member, engaging in violent conduct and disobeying a direct order. During the hearing, petitioner testified about a letter which consisted of an apology by petitioner for causing an investigation of staff members. Petitioner testified that the letter was handwritten by a correction officer; two correction officers then made him copy it and provide it to facility staff. The author of the misbehavior report, also the staff member who petitioner allegedly assaulted, was one of the two correction officers who allegedly forced petitioner to copy this apology letter. Petitioner informed the Hearing Officer that the original letter was available by fax from either his sister or the District Attorney, but the Hearing Officer did not obtain that document. Being relevant to petitioner's explanation that he was framed by the misbehavior report's author and to that individual's credibility, the letter should have been obtained for petitioner and admitted into evidence (see 7 NYCRR 254.6 [a] [3]; Matter of Perkins v Goord, 257 AD2d 821, 822 [1999]; Matter of Wilson v Coughlin, 186 AD2d 1090, 1090 [1992]; see also Matter of Adams v Coughlin, 202 AD2d 1055, 1055 [1994]). Due to the improper exclusion of the letter, we remit for further proceedings (see Matter of Perkins v Goord, 257 AD2d at 822; Matter of Webb v Coombe, 232 AD2d 694, 694 [1996]). [*2]

We also note that the record is incomplete, as it fails to contain petitioner's written submission, which the Hearing Officer acknowledged receiving and reviewing.

Cardona, P.J., Crew III, Peters and Mugglin, JJ., concur.

ADJUDGED that the determination is annulled, without costs, and matter remitted to respondent for further proceedings not inconsistent with this Court's decision.

It's disheartening to see that something as simple as this should have to make its way into the courts. When I was inside the system, I found many set-ups against inmates, and fortunately, I was a hearing officer and could intervene where possible. Not only that, but I was also Internal Affairs, and had the authority to CORRECT those who set out to persecute inmates and fabricate evidence.

Great ruling, Dan.

Believe it or not, there are more than 200 reported appellate decisions in New York within the past 2 years holding the same thing: that the attorney general has advised the court that the matter had been administratively reversed.

In New York, when an inmate is accused of a serious disciplinary violation, he is immediately placed in solitary confinement pending his hearing. In more than 95% of the hearings, the inmate is found guilty as charged. He then files his administrative appeal, from the box, which is usually rubber stamped "affirmed." It is then that he can take the matter to court -- while still in solitary, mind you -- where oftentimes decisions such as this result. Simply put, if the adjudication of guilt is to be administratively reversed, that should occur when the inmate's administrative appeal is filed in the first instance; the inmate should not be forced to spend months more in solitary confinement awaiting judicial relief.

And yet the DOC complains about inmate litigation.

Yet another recent favorable decision against NY Corruptions officials bases on substantial evidence of guilt found lacking.
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New York Supreme Court, Appellate Division, Third Department
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Matter of Betances v Leclaire
2008 NY Slip Op 00147
Decided on January 10, 2008
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided and Entered: January 10, 2008

502798
[*1]In the Matter of PAUL BETANCES, Petitioner,

v

LUCIEN J. LECLAIRE JR., as Commissioner of Correctional Services, Respondent.


Calendar Date: November 26, 2007
Before: Cardona, P.J., Peters, Spain, Lahtinen and Kane, JJ.


Paul Betances, Attica, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Peter
H. Schiff of counsel), for respondent.


MEMORANDUM AND JUDGMENT
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 Superintendent of Wyoming Correctional Facility which found petitioner guilty of violating a prison disciplinary rule.

After it was discovered that petitioner was not in possession of his razor, he was charged in a misbehavior report with loss of state property. A tier II disciplinary hearing ensued, at the conclusion of which petitioner was found guilty as charged. The penalty imposed was 30 days of keeplock, which was deferred for 90 days, along with 30 days of loss of recreation, packages, commissary and telephone privileges. That determination was affirmed upon administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We annul the determination. The misbehavior report alleges that a routine daily cube frisk failed to locate petitioner's razor. Petitioner's response to the correction officer conducting the cube frisk was that he was not issued a razor when he was transferred to Wyoming Correctional Facility the day before. Petitioner was the only witness to testify at the cursory disciplinary hearing, stating again that he was not issued a razor upon his arrival at the facility. The Hearing Officer adjourned the hearing briefly to attempt to locate the officer who processed petitioner into the facility, but was unsuccessful and concluded the hearing. Conspicuously absent from this record is any evidence that petitioner was, in fact, issued a razor. The [*2]misbehavior report is silent with respect to whether petitioner was issued a razor, no "razor issue log" was presented at the hearing (Matter of Harris v Fletcher, 30 AD3d 948, 948 [2006]), and there is no other "sufficiently relevant and probative" hearsay (People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]) set forth in the record to suggest that petitioner was issued a razor. Consequently, we conclude that the determination is not supported by substantial evidence and must be annulled (see Matter of Garcia v Selsky, 266 AD2d 772, 774 [1999]).

Cardona, P.J., Peters, Spain, Lahtinen and Kane, JJ., concur.

ADJUDGED that the determination is annulled, without costs, petition granted and respondent is directed to expunge all references to this matter from petitioner's institutional record.

New York Supreme Court, Appellate Division, Third Department

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Matter of Lavan v New York State Dept. of Correctional Servs.
2008 NY Slip Op 00405
Decided on January 24, 2008
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided and Entered: January 24, 2008

502782


[*1]In the Matter of KHASIM USAMA KENYETTA LaVAN, Petitioner,

v

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Respondent.


Calendar Date: December 19, 2007
Before: Mercure, J.P., Spain, Carpinello, Rose and Kane, JJ.


Khasim Usama Kenyetta La Van, Gouverneur,
petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Frank
Brady of counsel), for respondent.


MEMORANDUM AND JUDGMENT
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.