IN RE: BRYAN MEDINA (2016)

Supreme Court, Appellate Division, Fourth Department.

IN RE: BRYAN MEDINA, PETITIONER–RESPONDENT, v. ANTHONY J. ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT–APPELLANT.

CA 15–01813

Decided: November 18, 2016

PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR RESPONDENT–APPELLANT. KAREN MURTAGH, EXECUTIVE DIRECTOR, PRISONERS' LEGAL SERVICES OF NEW YORK, BUFFALO (DAVID W. BENTIVEGNA OF COUNSEL), FOR PETITIONER–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Contrary to respondent's contention, Supreme Court properly determined upon reargument that expungement of all references to the underlying incident from petitioner's institutional record, rather than remittal for a new hearing, was the appropriate remedy for the violation of petitioner's fundamental right to be present at his disciplinary hearing (see Matter of Brooks v. James, 105 AD3d 1233, 1234; Matter of Rush v. Goord, 2 AD3d 1185, 1186; see also Matter of Bowen v. Coombe, 239 A.D.2d 960, 960–961). This is not a case in which the record is unclear with respect to whether petitioner's right to be present was in fact violated (cf. Matter of Texeira v. Fischer, 26 NY3d 230, 234–235; Matter of Shoga v. Annucci, 132 AD3d 1338, 1339).

Frances E. Cafarell

Clerk of the Court

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