                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 5, 2015                   518816
________________________________

In the Matter of ERIC
   TOLLIVER,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

BRIAN FISCHER, as Commissioner
   of Corrections and
   Community Supervision,
                    Respondent.
________________________________


Calendar Date:   December 2, 2014

Before:   Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ.

                             __________


     Eric Tolliver, Fallsburg, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Kate H.
Nepveu of counsel), for respondent.

                             __________


      Appeal from a judgment of the Supreme Court (Teresi, J.),
entered April 11, 2014 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent which found
petitioner guilty of violating certain prison disciplinary rules.

      Petitioner commenced this CPLR article 78 proceeding to
challenge a determination finding him guilty of violating two
prison disciplinary rules. Supreme Court dismissed the petition.
Because we are precluded from conducting a meaningful review due
to transcription errors, we reverse (see Matter of Tolliver v
Fischer, 105 AD3d 1239, 1239 [2013]). Sections of the transcript
of the disciplinary hearing are clearly out of order, as noted by
the nonchronological dates recited by the Hearing Officer.
                              -2-                  518816

Portions of questioning of at least two witnesses appear to be
missing, although the extent of the missing information is
unclear. Petitioner was permitted to read what was described as
a three-page statement into the record, but his recitation is cut
off mid-sentence at the bottom of a page; the Hearing Officer
cited this statement as evidence that he relied upon in rendering
his decision. Although expungement is not required here, the
failure to properly record the entire hearing, including
potentially significant evidence, requires annulment and remittal
for a new hearing (see id. at 1239-1240; Matter of La Van v New
York State Dept. of Correctional Servs., 47 AD3d 1153, 1153
[2008]; Matter of Douglas v Goord, 24 AD3d 922, 923 [2005]).

     Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
