Sabo v. Racette
| Decision Date | 20 November 1986 |
| Citation | 508 N.Y.S.2d 666,124 A.D.2d 920 |
| Parties | In the Matter of Joseph SABO, Respondent, v. James RACETTE, as Superintendent of Adirondack Correctional Facility, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert Abrams, Atty. Gen. (Martin A. Hotvet, of counsel), Albany, for appellant.
Joseph Sabo, Raybrook, for respondent.
Before MAHONEY, P.J., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.
Appeal from a judgment of the Supreme Court at Special Term (Shea, J.), entered February 13, 1986 in Essex County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
An inmate at Adirondack Correctional Facility, petitioner was charged with violating two of the facility's disciplinary rules, namely, lying (see, 7 NYCRR 270.1) and possession of excessive tobacco (see, 7 NYCRR 270.1). The misbehavior report charges that petitioner, a legal assistant in the facility's law library, requested a correction officer to call another inmate to the library, ostensibly with regard to legal matters. When the inmate arrived, petitioner allegedly passed three cartons of cigarettes to the inmate. At the disciplinary hearing, petitioner denied having requested the correction officer to call the inmate and requested that a telephone log be introduced into evidence. The request was denied. Petitioner was found guilty of the charges and subsequently challenged this finding in the instant proceeding. Special Term found that the hearing officer's refusal to consider the telephone log was improper, ordered expungement from petitioner's record of references to the hearing, and directed that petitioner be restored to his legal assistant position, to his former housing unit and to monetary benefits which would have accrued to him.
On this appeal, respondent does not challenge Special Term's finding that the exclusion of the telephone log was improper. However, he does contend that a new hearing, not expungement, was the proper remedy. We agree. Expungement is an appropriate remedy where a new hearing cannot be conducted in accordance with due process (cf. Matter of Shipman v. Coughlin, 98 A.D.2d 823, 824, 470 N.Y.S.2d 774). Here, however, the error can be corrected in a new hearing, and such a hearing can be conducted in accordance with due process. New hearings have been deemed appropriate in similar cases, such as those in which a hearing officer improperly denied a prisoner's request for a witness (see, e.g., Matter of Coleman v. Coombe, 65 N.Y.2d 777, 492...
To continue reading
Request your trial
-
Torres v. Coughlin
...458 N.Y.S.2d 749, supra; but see, Matter of Coleman v. Coombe, 65 N.Y.2d 777, 492 N.Y.S.2d 944, 482 N.E.2d 562; Matter of Sabo v. Racette, 124 A.D.2d 920, 508 N.Y.S.2d 666). In view of our determination that expungement is required, we need not consider the contention that petitioner's subs......
-
People ex rel. Reed v. Scully
...determination and remands this matter for further disciplinary proceedings. Matter of Coleman, supra; Matter of Sabo v. Racette, 124 A.D.2d 920, 921, 508 N.Y.S.2d 666. See also Porter, supra (remittal "... for a hearing at which psychiatric proof should be presented"). On remand, petitioner......
-
Miller v. Iowa Dist. Court, 96-2274.
...determination, charges against inmate were serious and where inmate had served only a part of his penalty); Sabo v. Racette, 124 A.D.2d 920, 508 N.Y.S.2d 666, 667 (1986) ("[e]xpungement is an appropriate remedy where a new hearing cannot be conducted in accordance with due process"; inmate ......
-
Jenkins v. Coughlin
...remittal for a new hearing (see, id.; see also, Matter of Taylor v. Coughlin, 190 A.D.2d 900, 593 N.Y.S.2d 348; Matter of Sabo v. Racette, 124 A.D.2d 920, 508 N.Y.S.2d 666). ADJUDGED that the determination is annulled, without costs, and matter remitted to respondent for further proceedings......