In the Matter of Mario Garcia, Appellant, v. Thomas Coughlin, III, as Commissioner of the New York State Department of Correctional Services, et al., Respondents

In the Matter of Mario Garcia, Appellant, v Thomas Coughlin, III, as Commissioner of the New York State Department of Correctional Services, et al., Respondents. [618 NYS2d 597] [MAJORITY] —Appeal from a judgment of the Supreme Court (Lewis, J.), entered January 3, 1994 in Clinton County, which granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules. Petitioner was charged with violating State-wide rules prohibiting unhygienic acts and littering. The misbehavior report, authored by a correction officer who witnessed the disturbance, stated that the occupant of petitioner’s cell threw miscellaneous debris, including urine and feces, at the inmate in an adjoining cell. At the Superintendent’s hearing, the correction officer identified petitioner as the inmate who threw the debris. Petitioner was found guilty of both charges. Supreme Court annulled based upon the denial of petitioner’s right to attend the Superintendent’s hearing and remitted the matter for a new hearing. Because the denial of petitioner’s right to be present at the hearing can be adequately remedied by requiring a new hearing, we find no merit to petitioner’s contention that remittal is an inappropriate remedy in this case. We have considered petitioner’s other contentions and find them to be without merit. Cardona, P. J., Mercure, Crew III, Casey and Peters, JJ., concur. Ordered that the judgment is affirmed, without costs.