                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 29, 2015                   520347
________________________________

In the Matter of MARKEL NANCE,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   September 22, 2015

Before:   Peters, P.J., Lahtinen, Rose and Lynch, JJ.

                             __________


     Markel Nance, Comstock, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondent.

                             __________


      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 respondent finding petitioner guilty of
violating certain prison disciplinary rules.

      Petitioner commenced this CPLR article 78 proceeding
challenging a disciplinary determination finding him guilty of
violating two disciplinary rules. Petitioner contends, among
other things, that the Hearing Officer erred in failing to
ascertain why a requested inmate had refused to testify.
Respondent concedes, and we agree, that inaudible gaps in the
disciplinary hearing transcript preclude meaningful review of
that issue. Although the determination must be annulled,
remittal for a new hearing, rather than expungement, is the
appropriate remedy under the circumstances (see Matter of Nova v
                              -2-                  520347

Fischer, 112 AD3d 1234, 1234 [2013], lv denied 22 NY3d 866
[2014]; Matter of Farrell v New York State Off. of the Attorney
Gen., 108 AD3d 801, 802 [2013]).

     Peters, P.J., Lahtinen, Rose and Lynch, JJ., concur.



      ADJUDGED that the determination is annulled, without costs,
petition granted and matter remitted to respondent for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
