Elisha Torres, Romulus, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: PETERS, P.J., ROSE, SPAIN, STEIN and EGAN JR., JJ.
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 Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of cannabinoids. He was found guilty of the charge at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Petitioner asserts that a legitimate explanation for the discrepancy in readings between the first and the second urinalysis tests was not provided and the determination is, therefore, not supported by substantial evidence. The hearing transcript reveals that the entire testimony of the SYVA representative is inexplicably missing from the record. Both the Hearing Officer and petitioner made references to such testimony during the hearing and had differing interpretations. Inasmuch as the SYVA representative's testimony had a significant bearing on the main issue in dispute, meaningful review is precluded without it ( see Matter of Baez v. Bezio, 77 A.D.3d 745, 746, 908 N.Y.S.2d 608 [2010],lv. dismissed16 N.Y.3d 752, 919 N.Y.S.2d 106, 944 N.E.2d 641 [2011];Matter of White v. Fischer, 73 A.D.3d 1372, 1373, 900 N.Y.S.2d 695 [2010] ). Therefore, the determination must be annulled and the matter remitted for a new hearing ( see Matter of La Van v. New York State Dept. of Correctional Servs., 47 A.D.3d 1153, 850 N.Y.S.2d 285 [2008];Matter of Auricchio v. Goord, 273 A.D.2d 571, 572, 709 N.Y.S.2d 680 [2000];Matter of Monko v. Selsky, 246 A.D.2d 699, 667 N.Y.S.2d 480 [1998] ).
ADJUDGED that the determination is annulled, without costs, petition granted to that extent and matter remitted to the Commissioner of Corrections and Community Supervision for further proceedings not inconsistent with this Court's decision.