                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 1, 2016                   522718
________________________________

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


Calendar Date:   October 25, 2016

Before:   Peters, P.J., McCarthy, Garry, Egan Jr. and Lynch, JJ.

                             __________


     Marcus Telesford, Malone, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Frank Brady
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 the Superintendent of Great Meadow
Correctional Facility finding petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner was charged in a misbehavior report with
harassment, making threats and violating facility correspondence
procedures stemming from a letter he wrote in response to a
letter from a grievance supervisor. Following a tier II
disciplinary hearing, petitioner was found guilty of harassment
and violating facility correspondence procedures. The
determination was affirmed upon administrative appeal, and this
CPLR article 78 proceeding ensued.
                              -2-                522718

      Initially, respondent concedes, and we agree, that
substantial evidence does not support the finding that petitioner
was guilty of violating facility correspondence procedures.
Turning to the merits, petitioner asserts that he was improperly
denied the right to present documentary evidence in support of
his defense, an issue that, contrary to respondent's contention,
we find preserved for our review. The record establishes that
when petitioner informed the Hearing Officer that he had
documentary evidence, albeit not with him at that time, that
would support his defense of retaliation, the Hearing Officer
adjourned the hearing without addressing the issue of the
documentary evidence and, immediately upon recommencement of the
hearing, rendered the determination of guilt. Because the
documentary evidence was relevant to petitioner's exculpatory
explanation regarding the content of the letter that formed the
basis of the misbehavior report, as well as to his defense of
retaliation, and because we cannot say that petitioner was not
prejudiced by the omission of the documents, the determination
must be annulled (see Matter of Caldwell v Rock, 93 AD3d 1048,
1048 [2012]; Matter of Bellamy v Fischer, 87 AD3d 1217, 1218
[2011]; compare Matter of Mulcahy v Selsky, 295 AD2d 663, 663-664
[2002]). Such error requires that the matter be remitted for a
new hearing with regard to the charge of harassment (see Matter
of Cooks v Prack, 87 AD3d 1199, 1200 [2011]; Matter of Taylor v
Coughlin, 190 AD2d 900, 902 [1993], lv denied 82 NY2d 651
[1993]). In view of the foregoing, petitioner's remaining
contentions need not be addressed.

      Peters, P.J., McCarthy, Garry, Egan Jr. and Lynch, JJ.,
concur.
                              -3-                  522718

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
