                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 15, 2016                   522050
________________________________

In the Matter of HOWARD AYERS,
                    Petitioner,
      v

DONALD VENETTOZZI, as Acting                MEMORANDUM AND JUDGMENT
   Director of Special Housing
   and Inmate Disciplinary
   Programs,
                    Respondent.
________________________________


Calendar Date:   August 8, 2016

Before:   McCarthy, J.P., Garry, Egan Jr., Clark and Aarons, JJ.

                             __________


     Howard Ayers, Malone, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco 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 Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      During the course of an investigation, correction officials
discovered that petitioner was corresponding with two other
inmates without proper authorization. Specifically, the cell of
an inmate incarcerated at Attica Correctional Facility was
searched and letters signed by petitioner using his Muslim name
were found in envelopes bearing return addresses that were not
from a correctional facility. One of petitioner's letters
included a report from a third inmate concerning Nation of Islam
                              -2-                522050

business. Petitioner's cell at Gowanda Correctional Facility was
also searched and additional documentation was recovered
confirming that petitioner and these two inmates had been
communicating via a third party. As a result, petitioner was
charged in a misbehavior report with violating facility
correspondence rules, possessing contraband, engaging in an
unauthorized exchange and leading, organizing or urging other
inmates to participate in a demonstration. Following a tier III
disciplinary hearing that began on June 24, 2014 and ended on
July 1, 2014, petitioner was found guilty of all charges except
leading, organizing or urging other inmates to participate in a
demonstration. The determination was thereafter affirmed on
administrative appeal and this CPLR article 78 proceeding
ensued.1

      Initially, we are unpersuaded by petitioner's contention
that certain portions of the disciplinary hearing transcript have
been falsified. As respondent maintains, the dates of July 10,
2014 and July 11, 2014, as set forth in the hearing transcript,
merely appear to be inadvertent typographical errors.

      Petitioner also argues that the hearing transcript is
incomplete, as it does not include a portion of the hearing that
allegedly occurred on June 30, 2014. According to petitioner, on
that date, he was improperly denied copies of certain
nonconfidential documents and was removed from the proceedings.
Respondent asserts that there is no transcript of any proceedings
occurring on June 30, 2014 because there were no such
proceedings. However, during the portion of the hearing that
took place on July 1, 2014, petitioner objected to an off-the-
record discussion that purportedly occurred on June 30, 2014,
during which a "third party, unknown to [him]" allegedly ruled as



    1
        Although the petition raises an issue of substantial
evidence and the proceeding was properly transferred to this
Court, petitioner has abandoned such issue by not raising it in
his brief (see Matter of Taylor v Annucci, 140 AD3d 1433, 1434 n
[2016]; Matter of Allaway v Prack, 139 AD3d 1203, 1204 n 1
[2016]).
                               -3-                522050

to which documents he could and could not have access.2 Despite
petitioner's repeated references to a "hearing" on June 30, 2014,
including his specific objection to those proceedings not being
recorded, the Hearing Officer did not acknowledge, address or
correct petitioner's assertion that a hearing took place on June
30, 2014 or that a ruling took place denying him certain
nonconfidential documents. Under these circumstances, and given
that we are unable to ascertain from the record which documents,
if any, petitioner was denied, we find that we are precluded from
conducting a meaningful review of petitioner's contention that he
was improperly denied nonconfidential documents (see Matter of
Farrell v New York State Off. of the Attorney Gen., 108 AD3d 801,
801 [2013]; Matter of La Van v New York State Dept. of
Correctional Servs., 47 AD3d 1153, 1153 [2008]). Accordingly, we
annul the determination and remit the matter for a new hearing
(see Matter of Green v Prack, 101 AD3d 1203, 1204 [2012]; Matter
of La Van v New York State Dept. of Correctional Servs., 47 AD3d
at 1153).

      McCarthy, J.P., Garry, Egan Jr., Clark and Aarons, JJ.,
concur.




     2
        The record reveals that petitioner met with his assistant
for a second time on June 30, 2014 and was given copies of nine
unidentified documents on that date.
                              -4-                  522050

      ADJUDGED that the determination is annulled, without costs,
and matter remitted to the Commissioner of Corrections and
Community Supervision for further proceedings not inconsistent
with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
