                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 17, 2015                   520348
________________________________

In the Matter of JOSEPH BELILE,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ST. LAWRENCE COUNTY SHERIFF'S
   DEPARTMENT, CORRECTIONS
   DIVISION, et al.,
                    Respondents.
________________________________


Calendar Date:   August 10, 2015

Before:   Lahtinen, J.P., McCarthy, Lynch and Devine, JJ.

                             __________


     Joseph Belile, Malone, petitioner pro se.

     Andrew S. Moses, County Attorney, Canton, for respondents.

                             __________


      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in St. Lawrence
County) to review a determination which found petitioner guilty
of violating certain rules governing inmate conduct at the St.
Lawrence County Correctional Facility.

      While petitioner was an inmate at the St. Lawrence County
Correctional Facility, he was accused of making handwritten
notations in a law book he borrowed from the law library. As a
result, he was charged with violating various rules governing
inmate conduct at the facility. Following a hearing, the Hearing
Officer concluded that petitioner had made the notations and
found petitioner guilty of the rule violations. Petitioner took
an administrative appeal and the determination was upheld. He
subsequently commenced this CPLR article 78 proceeding
                                  -2-               520348

challenging the determination.1

      Upon reviewing the record, we find it to be wholly
inadequate to support the determination at issue. The required
hearing transcript is completely missing and, accordingly, we are
unable to evaluate the testimony supporting the charges (see CPLR
7804 [e]). Significantly, although the Hearing Officer based the
determination largely upon a comparison of the handwritten
notations with samples of petitioner's handwriting, including the
jail administrator's verification that the notations matched
petitioner's handwriting, neither the handwriting samples nor any
statements from the jail administrator are included in the
record. In view of this, we conclude that the determination is
not supported by substantial evidence and must be annulled (see
generally Matter of Douglas v Goord, 24 AD3d 922, 923 [2005]).
Given that petitioner has already served the penalty, expungement
is the proper remedy (see Matter of Gomez v Coughlin, 227 AD2d
882 [1996]). Furthermore, petitioner should be reimbursed the
$246.02 he was required to pay in restitution, as well as the $10
hearing fee (see Matter of Boose v Fischer, 116 AD3d 1296, 1297
[2014]).

         Lahtinen, J.P., McCarthy, Lynch and Devine, JJ., concur.




     1
        Petitioner was apparently transferred from local to state
custody after the determination at issue, but that fact does not
render the present proceeding moot. Petitioner seeks the return
of monies he was forced to pay in restitution and, as such, his
rights "will be directly affected by the determination of" this
proceeding (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713
[1980]; see Matter of Charlotte's Fancy Restaurant, Inc. v City
of New York, Dept. of Consumer Affairs, 69 NY2d 865, 867 [1987];
compare Matter of Barnes v Harling, 96 AD3d 1415, 1416 [2012],
appeal dismissed and lv denied 19 NY3d 1011 [2012]).
                              -3-                  520348

      ADJUDGED that the determination is annulled, without costs,
and respondent St. Lawrence County Sheriff's Department,
Corrections Division is directed to expunge all references to
this matter from petitioner's institutional record and to refund
the restitution and hearing fee imposed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
