DeShields v. Coughlin

Appellate Division of the Supreme Court of New York

DeShields v. Coughlin

222 A.D.2d 1106, 636 N.Y.S.2d 689, 1995 N.Y. App. Div. LEXIS 14214

Appellate Division of the Supreme Court of the State of New York·Decided December 22, 1995·Published

Opinion

—Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent Superintendent for further proceedings in accordance with the following Memorandum: We agree with the determination that petitioner violated inmate rules 106.10 (7 NYCRR 270.2 [B] [7] [i]; failure to obey a direct order) and 107.10 (7 NYCRR 270.2 [B] [8] [i]; interference with employee).

Respondents concede, however, that there is no proof that petitioner violated inmate rule 104.11 (7 NYCRR 270.2 [B] [5] [ii]; violent conduct). Thus, the determination must be modified, that charge expunged from petitioner’s record, and the matter remitted for imposition of an appropriate penalty on the remaining violations (see, Matter of Muqtadir v Coughlin, 212 AD2d 1048; Matter of Brooks v Coughlin, 182 AD2d 1115). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present — Denman, P. J., Pine, Wesley, Balio and Boehm, JJ.

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—Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent Superintendent for further proceedings in accordance with the following Memorandum: We agree with the determination that petitioner violated inmate rules 106.10 (7 NYCRR 270.2 [B] [7] [i]; failure to obey a direct order) and 107.10 (7 NYCRR 270.2 [B] [8] [i]; interference with employee).

Respondents concede, however, that there is no proof that petitioner violated inmate rule 104.11 (7 NYCRR 270.2 [B] [5] [ii]; violent conduct). Thus, the determination must be modified, that charge expunged from petitioner’s record, and the matter remitted for imposition of an appropriate penalty on the remaining violations (see, Matter of Muqtadir v Coughlin, 212 AD2d 1048; Matter of Brooks v Coughlin, 182 AD2d 1115). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present — Denman, P. J., Pine, Wesley, Balio and Boehm, JJ.

DeShields v. Coughlin, 222 A.D.2d 1106, 636 N.Y.S.2d 689, 1995 N.Y. App. Div. LEXIS 14214 (N.Y. Ct. App. 1995).

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