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Failure to Transcribe Entire Hearing Required Annulment

In annulling the disciplinary determination, the Third Department explained that the apparent failure to transcribe the entire tape recording of the hearing made it impossible to know whether evidence favorable to the inmate’s defense was presented:

It appears from the transcript that only the first side of the audiotape was transcribed as the stenographer made a notation, “[s]econd side of tape not audible-runs on fast speed only,” and then abruptly ended the transcript.    We cannot ascertain what was on the second side of the tape or if it would have been beneficial to petitioner’s defense… ..Notably, the transcript does not reveal the disposition of petitioner’s request to have his wife and family members testify as witnesses at the hearing. In view of this, and given the potentially significant testimony that may be missing, the determination must be annulled… . Matter of Farrell, 514504, 3rd Dept 7-3-13

 

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LAWSUIT SEEKING TO ENJOIN JUDICIAL SALARY INCREASES WAS PROPERLY DISMISSED (THIRD DEPT). ​
UPON LEARNING THE STATE, BY EFFECTIVELY MISLEADING THE COURT, OBTAINED A JUDGMENT DETERMINING IT OWNED LAND IN THE ADIRONDACK PARK, THE COURT PROPERLY EXERCISED ITS DISCRETION TO VACATE THE JUDGMENT PURSUANT TO CPLR 5015 (THIRD DEPT).
DEFENSE COUNSEL SUBMITTED EVIDENCE IN SUPPORT OF A DOWNWARD DEPARTURE FROM THE PRESUMPTIVE RISK LEVEL BUT COUNTY COURT DID NOT RULE ON IT; MATTER REMITTED FOR FINDINGS OF FACT AND CONCLUSIONS (THIRD DEPT).
THE TRIAL JUDGE DID NOT PROCEED TO STEP THREE OF THE BATSON ANALYSIS OF THE PEOPLE’S PEREMPTORY CHALLENGE TO A JUROR; MATTER REMITTED FOR THAT PURPOSE (THIRD DEPT).
HERE THE STUDENT WITH DISABILITIES WAS UNSUPERVISED IN GYM CLASS WHEN SHE WAS INJURED; THE DEFENDANT SCHOOL DISTRICT SUCCESSFULLY EXCLUDED EVIDENCE THAT MORE SUPERVISION OF THE STUDENT WAS NEEDED BECAUSE SUCH EVIDENCE PURPORTEDLY CONFLICTED WITH THE STUDENT’S “AMERICANS WITH DISABILITIES ACT 504 PLAN” (WHICH DID NOT CALL FOR EXTRA SUPERVISION) AND THEREFORE EXTRA SUPERVISION WOULD HAVE AMOUNTED TO DISCRIMINATION; THE THIRD DEPARTMENT REJECTED THE ARGUMENT FINDING THAT THE 504 PLAN DID NOT ACT AS A CEILING FOR THE LEVEL OF SUPERVISION TO BE AFFORDED THE STUDENT AND ORDERED A NEW TRIAL (THIRD DEPT).
COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT).
EVIDENCE OF MOTHER’S FAILURE TO COMPLY WITH CONDITIONS OF A SUSPENDED JUDGMENT WAS INCOMPLETE, AND, ALTHOUGH THE EVIDENCE OF FATHER’S FAILURE TO COMPLY WAS SUFFICIENT, FAMILY COURT DID NOT TAKE THE BEST INTERESTS OF THE CHILDREN INTO CONSIDERATION, TERMINATION OF PARENTAL RIGHTS REVERSED (THIRD DEPT). ​

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