IN RE: Application of Sean NELSON (2000)

Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Sean NELSON, Petitioner, For a Judgment, etc., v. NEW YORK CITY DEPARTMENT OF CORRECTION, et al., Respondents.

Decided: March 16, 2000

SULLIVAN, P.J., ROSENBERGER, MAZZARELLI, BUCKLEY and FRIEDMAN, JJ.

Claudette R. Spencer, for Petitioner. Joseph I. Lauer, for Respondents.

Determination of respondent Department of Correction, dated December 3, 1998, finding petitioner inmate guilty of assault and sentencing him to 135 days of punitive segregation, unanimously annulled, on the law and the facts, without costs, and the petition pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, Bronx County [Lawrence Bernstein, J.] entered September 27, 1999) granted to the extent of vacating the determination of December 3, 1998, dismissing with prejudice the charges set forth in Notice of Infraction No. 1370/98, and expunging all references in Department of Correction records to those charges, the hearing and the disposition of the hearing.

As respondents concede, their inability to supply the tape of the subject disciplinary hearing precludes review of petitioner's claim that he was denied due process, and requires that the relief sought in the petition be granted to the extent possible. We note that petitioner has been released from prison, rendering his challenge to the continued segregated confinement academic.

MEMORANDUM DECISION.

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