                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 12, 2015                   519885
________________________________

In the Matter of JOHN HAMLETT,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
LIEUTENANT KELLEY, as Hearing
   Officer, et al.,
                    Respondents.
________________________________


Calendar Date:   September 22, 2015

Before:   Peters, P.J., Garry, Devine and Clark, JJ.

                             __________


     John Hamlett, Comstock, petitioner pro se.

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

                             __________


      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Clinton County)
to review a determination of the Superintendent of Clinton
Correctional Facility finding petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner commenced this CPLR article 78 proceeding
challenging a tier II disciplinary determination finding him
guilty of refusing a direct order, violating lock-in procedures
and delaying the inmate count. One of the two audiotapes of the
disciplinary hearing was inaudible and unable to be transcribed.
Although the determination must be annulled due to the incomplete
transcript (see Matter of Torres v Prack, 95 AD3d 1518, 1519
[2012]), we are unpersuaded by petitioner's contention that
expungement is required. Because "the failure to produce a
transcript did not involve a substantial evidence issue or
                              -2-                  519885

implicate any fundamental due process rights" (Matter of Jones v
Fischer, 110 AD3d 1295, 1296 [2013], appeal dismissed 23 NY3d 955
[2014] [internal quotation marks and citations omitted]; see
Matter of Farrell v New York State Off. of the Attorney Gen., 108
AD3d 801, 802 [2013]), and there are no other equitable
considerations to warrant expungement, remittal for a new hearing
is the appropriate remedy (see Matter of Barnes v Fischer, 108
AD3d 990, 990-991 [2013], lv denied 22 NY3d 855 [2013]; Matter of
Hayes v Fischer, 95 AD3d 1587, 1588 [2012]).

     Peters, P.J., Garry, Devine and Clark, JJ., concur.



      ADJUDGED that the determination is annulled, without costs,
and matter remitted to the Superintendent of Clinton Correctional
Facility for further proceedings not inconsistent with this
Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
