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

Matter of Mark ELLIOT, Petitioner, v. Glenn S. GOORD, Commissioner, New York State Department of Correctional Services, Respondent.

Decided: December 30, 1999

PRESENT:  PINE, J.P., HAYES, PIGOTT, JR., HURLBUTT and CALLAHAN, JJ. Norman P. Effman, Attica, for Petitioner. Nancy A. Spiegel, Albany, for Respondent.

Petitioner was found guilty after a Tier III hearing of violating inmate rules 100.11 (7 NYCRR 270.2[B][1][ii] [assaulting a staff member] ) and 104.11 (7 NYCRR 270.2[B][5][ii] [engaging in violent conduct] ).   He contends that he was deprived of his right to an unbiased and impartial Hearing Officer.   That contention was raised at the hearing and on administrative appeal.   We agree with petitioner's contention.   The leading questions asked by the Hearing Officer were egregious.   The Hearing Officer provided most of the witnesses' answers and compounded the error by answering questions petitioner sought to have put to the witnesses.   Near the end of the hearing the Hearing Officer asked petitioner why he ran, indicating that the Hearing Officer had already determined that petitioner had run from the correction officers.   Petitioner also contends that the determination is not supported by substantial evidence.   Although a misbehavior report may alone provide substantial evidence to support a determination, in this case we agree with petitioner that the untainted evidence is insufficient to support the determination (see generally, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139-140, 495 N.Y.S.2d 332, 485 N.E.2d 997).   Thus, it must be annulled, the petition granted and petitioner's administrative record with respect to those charges expunged.

Determination unanimously annulled on the law without costs and petition granted.


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