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