State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: September 17, 2015 520348 

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In the Matter of JOSEPH BELILE,

Petitioner,

v MEMORANDUM AND JUDGMENT

ST. LAWRENCE COUNTY SHERIFF'S

DEPARTMENT, CORRECTIONS

DIVISION, et al.,

Respondents.

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Calendar Date: August 10, 2015

Before: Lahtinen, J.P., McCarthy, Lynch and Devine, JJ.

__________

Joseph Belile, Malone, petitioner pro se.

Andrew S. Moses, County Attorney, Canton, for respondents.

__________

Proceeding pursuant to CPLR article 78 (transferred to this

Court by order of the Supreme Court, entered in St. Lawrence

County) to review a determination which found petitioner guilty

of violating certain rules governing inmate conduct at the St.

Lawrence County Correctional Facility.

While petitioner was an inmate at the St. Lawrence County

Correctional Facility, he was accused of making handwritten

notations in a law book he borrowed from the law library. As a

result, he was charged with violating various rules governing

inmate conduct at the facility. Following a hearing, the Hearing

Officer concluded that petitioner had made the notations and

found petitioner guilty of the rule violations. Petitioner took

an administrative appeal and the determination was upheld. He

subsequently commenced this CPLR article 78 proceeding
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challenging the determination.1

Upon reviewing the record, we find it to be wholly

inadequate to support the determination at issue. The required

hearing transcript is completely missing and, accordingly, we are

unable to evaluate the testimony supporting the charges (see CPLR

7804 [e]). Significantly, although the Hearing Officer based the

determination largely upon a comparison of the handwritten

notations with samples of petitioner's handwriting, including the

jail administrator's verification that the notations matched

petitioner's handwriting, neither the handwriting samples nor any

statements from the jail administrator are included in the

record. In view of this, we conclude that the determination is

not supported by substantial evidence and must be annulled (see

generally Matter of Douglas v Goord, 24 AD3d 922, 923 [2005]). 

Given that petitioner has already served the penalty, expungement

is the proper remedy (see Matter of Gomez v Coughlin, 227 AD2d

882 [1996]). Furthermore, petitioner should be reimbursed the

$246.02 he was required to pay in restitution, as well as the $10

hearing fee (see Matter of Boose v Fischer, 116 AD3d 1296, 1297

[2014]). 

Lahtinen, J.P., McCarthy, Lynch and Devine, JJ., concur.

1 Petitioner was apparently transferred from local to state

custody after the determination at issue, but that fact does not

render the present proceeding moot. Petitioner seeks the return

of monies he was forced to pay in restitution and, as such, his

rights "will be directly affected by the determination of" this

proceeding (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713

[1980]; see Matter of Charlotte's Fancy Restaurant, Inc. v City

of New York, Dept. of Consumer Affairs, 69 NY2d 865, 867 [1987];

compare Matter of Barnes v Harling, 96 AD3d 1415, 1416 [2012],

appeal dismissed and lv denied 19 NY3d 1011 [2012]).
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ADJUDGED that the determination is annulled, without costs,

and respondent St. Lawrence County Sheriff's Department,

Corrections Division is directed to expunge all references to

this matter from petitioner's institutional record and to refund

the restitution and hearing fee imposed.

ENTER:

Robert D. Mayberger

Clerk of the Court