New York State Court of Claims

New York State Court of Claims

JENKINS v. THE STATE OF NEW YORK, #2005-019-569, Claim No. 108431, Motion No. M-70567


Synopsis


Claimant's motion to compel production of transcript of underlying disciplinary hearing is denied.

Case Information

UID:
2005-019-569
Claimant(s):
CHARLES JENKINS
Claimant short name:
JENKINS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108431
Motion number(s):
M-70567
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
CHARLES JENKINS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 19, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for an order compelling the defendant to produce a transcript of his disciplinary hearing. The State of New York (hereinafter "State") opposes the motion.

This claim alleges that claimant was wrongfully confined in Elmira Correctional Facility due to a false misbehavior report and was also denied adequate time and assistance to prepare for the related disciplinary hearing. More specifically, claimant avers, among other things, that just prior to the start of his hearing that the hearing officer stated "okay now you have to convince me that you're not guilty..." (Claim, ¶ 10). Claimant appealed the adverse finding and on July 22, 2003 the commissioner administratively reversed the hearing.


By way of this motion, claimant seeks to compel the State to produce a transcript of his disciplinary hearing. The State opposes the motion by representing that no transcript of the hearing tape exists, although admitting that it is in possession of the hearing tape itself. The State argues that it cannot be compelled to create an otherwise non-existent writing for purposes of discovery and points out that claimant is currently housed at the site of the disciplinary hearing meaning that he is able to listen to the audio tape himself.


The court agrees that the State cannot be compelled to create a transcript under these circumstances. That having been said, however, if claimant is willing to pay for the cost of transcription then he should advise the State which in turn should advise claimant of said cost. In the event the claimant is unable to afford the cost of transcription then it is not unreasonable for the parties to attempt to arrange reasonable alternatives, such as the one suggested by the State, namely arranging an opportunity for claimant to listen to the audio tape with the understanding that any such arrangements are subject to whatever security restrictions the New York State Department of Correctional Services deems appropriate. Of course, in the event that claimant listens to the audio tape and thereafter wishes to obtain a transcript of said hearing he will be required to pay reasonable transcription costs. (Gittens v State of New York, 175 AD2d 530).


In view of the foregoing, it is ORDERED, that claimant's motion, Motion No. M-70567, is DENIED.


September 19, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:
  1. Claim, filed October 21, 2003.
  2. "Notice of Motion To Compel", Motion No. M-70567, dated August 2005, and filed August 12, 2005, with attachment.
  3. Affirmation of Geoffrey B. Rossi, AAG, in opposition to motion, dated August 31, 2005, and filed September 2, 2005, with attached exhibit.