Butchino v. Goord

245 A.D.2d 1049, 666 N.Y.S.2d 69, 1997 N.Y. App. Div. LEXIS 13800

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1997
• Status: Published

Opinion

—Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: Petitioner was found guilty following a Tier III hearing of violating inmate rules 108.14 (7 NYCRR 270.2 [B] [9] [v] [violation of temporary release programming rules]) and 102.10 (7 NYCRR 270.2 [B] [3] [i] [making threats]). According to the inmate misbehavior report, petitioner, while on temporary release, threatened to kill his ex-wife’s husband. There is substantial evidence to support the determination that petitioner is guilty of violating temporary release programming rules (see, 7 NYCRR 1902.1 [8] [a], [c]); we conclude, however, that the determination that petitioner is guilty of making threats cannot be supported. The rule prohibiting the making of threats is included in that part of the rules entitled “Standards of Inmate Behavior—Behavior Prohibited In All Facilities and the Classification of Each Infraction” (7 NYCRR part 270 [emphasis added]). Those rules identify “a list of prohibited behavior in all correctional facilities” (7 NYCRR 270.2 [emphasis added]). The rules are designed to maintain order in correctional facilities and cannot be enforced with respect to actions taken outside correctional facilities. Therefore, we modify the determination by annulling that part finding petitioner guilty of making threats, order expungement of petitioner’s records with respect to that charge, vacate the penalty imposed therefor and remit the matter to respondent for reconsideration of a proper penalty (see, Matter of Sowell v Coombe, 234 AD2d 842, 843). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present—Denman, P. J., Lawton, Hayes, Balio and Boehm, JJ.