                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 26, 2017                   522733
________________________________

In the Matter of EDWIN
   RODRIGUEZ,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

CHRISTOPHER MILLER, as
   Superintendent of Great
   Meadow Correctional
   Facility,
                    Respondent.
________________________________


Calendar Date:   November 29, 2016

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

                             __________


     Edwin Rodriguez, Comstock, 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 Washington
County) to review a determination of respondent finding
petitioner guilty of violating certain prison disciplinary rules.

      While a correction officer was directing inmates to return
to their cells, he advised them that no food was to leave the
feed-up area. When petitioner indicated that he had not yet
eaten, the officer informed petitioner to return to his cell,
stating that petitioner could eat with his company. The officer
frisked petitioner prior to leaving the area, at which time a
piece of baked chicken was discovered in a chip bag in
petitioner's back pocket. As a result, petitioner was charged in
                              -2-                  522733

a misbehavior report with refusing a direct order, stealing state
property and smuggling. Following a tier II disciplinary
hearing, petitioner was found guilty of these charges, and the
determination was affirmed upon administrative appeal. This CPLR
article 78 proceeding ensued.

      Respondent concedes and, upon reviewing the record, we
agree that the portion of the determination finding petitioner
guilty of refusing a direct order and stealing state property is
not supported by substantial evidence and, as such, must be
annulled (see Matter of Smith v Venettozzi, 142 AD3d 1201, 1202
[2016]; Matter of Belot v Selsky, 56 AD3d 911, 912 [2008]). As
to the balance of the determination finding petitioner guilty of
smuggling, we find that "the hearing transcript is replete with
inaudible gaps that preclude our meaningful review" of this
particular charge (Matter of Caldwell v Annucci, 140 AD3d 1248,
1248 [2016]). Although the determination now must be annulled in
its entirety, we are not persuaded that petitioner was denied due
process (see Matter of Hamlett v Kelley, 133 AD3d 992, 992-993
[2015]); therefore, remittal for a new hearing as to the
smuggling violation, rather than expungement, is the appropriate
remedy (see Matter of Caldwell v Annucci, 140 AD3d at 1248-1249;
Matter of Nance v Annucci, 132 AD3d 1198, 1198 [2015]).

      McCarthy, J.P., Garry, Egan Jr., Rose and Devine, JJ.,
concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
