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
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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-therecord 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]).
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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. 
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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