Summary
rehearing of disciplinary decision to allow prison officials to present additional evidence unaccountably withheld at first hearing was improper
Summary of this case from Hansen v. PatrissiOpinion
Decided November 25, 1987
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Lee A. Davis and David C. Leven for appellants.
Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Frank K. Walsh of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be modified by deleting so much of that order as remitted the matters to respondent for new hearings, directing that all references to the proceedings be expunged and otherwise affirmed.
Upon respondent's concession that the challenged disciplinary determinations were not supported by substantial evidence, but that there was additional evidence that would support them, the Appellate Division annulled the determination and remitted the misbehavior charges to the Department of Correctional Services for new hearings. We hold that remittitur was improper under these circumstances. The Department had a full opportunity to present the cases against petitioners when the first hearings on the misbehavior charges were conducted. The Department cannot now be permitted to hold new hearings so that it can present additional evidence that was available but unaccountably withheld at the first hearing (cf., Matter of Shipman v Coughlin, 98 A.D.2d 823, 824 [rehearing permitted following appellate reversal for procedural impropriety]).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.