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IN RE: JARVIS ELDER, PETITIONER, v. BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.
MEMORANDUM AND ORDER
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Mark H. Dadd, A.J.], entered June 18, 2013) to review a determination of respondent. The determination found after a tier III hearing that petitioner had violated various inmate rules.
It is hereby ORDERED that the determination is unanimously annulled on the law without costs, the amended petition is granted and respondent is directed to expunge from petitioner's institutional record all references to the violation of inmate rules 116.10 (7 NYCRR 270.2[B][17][i] ) and 116.12 (7 NYCRR 270.2[B][17][iii] ).
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated inmate rules 116.10 (7 NYCRR 270.2[B][17][i] [stealing] ) and 116.12 (7 NYCRR 270.2[B][17][iii] [forgery] ), relating to his alleged forgery of another inmate's name on certain disbursement forms. We agree with petitioner that the determination is not supported by substantial evidence (see generally People ex rel. Vega v Smith, 66 N.Y.2d 130, 139), and we therefore grant the amended petition, annul the determination and direct that all references to the matter be expunged from petitioner's record. Although a misbehavior report may by itself constitute substantial evidence of guilt (see id. at 140–141), here the misbehavior report was based upon the belief of the sergeant who authored it that petitioner forged another inmate's signature on certain disbursement forms, and there is no indication in the misbehavior report that the sergeant showed the other inmate the disbursement forms or that the other inmate claimed that it was not his signature on the forms. There likewise was no evidence to that effect presented at the hearing. Although five of the seven disbursement forms bear the stamp “inmate identification verified hall capt.,” those correction officers were not identified in the misbehavior report and their signatures are obscured by the stamp on the top copy of the triplicate disbursement form. Indeed, we note that the record establishes that petitioner requested that those correction officers be identified by using copies in the triplicate disbursement form and that they be called as witnesses at the hearing. The hearing, however, concluded without compliance with petitioner's request. Indeed, we note that the Hearing Officer indicated that the signatures of the hall captains were illegible and thus unidentifiable, even by those officers in the block to whom the Hearing Officer had spoken, but nevertheless agreed to “try” to comply with petitioner's request to call those witnesses. The record does not reflect any efforts made by the Hearing Officer to do so.
Frances E. Cafarell
Clerk of the Court
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Docket No: TP 13–01112
Decided: March 21, 2014
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
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