Grof v. Goord

302 A.D.2d 955, 754 N.Y.S.2d 612, 2003 N.Y. App. Div. LEXIS 954

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2003
• Status: Published

Opinion

CPLR article 78 proceeding transferred to this Court by an order of Supreme Court, Wyoming County (Dadd, J.), entered July 26, 2002, seeking review of a determination after a Tier III hearing.

It is hereby ordered that the determination so appealed from be and the same hereby is unanimously modified on the law by granting the petition in part and annulling the determination that petitioner violated inmate rule 114.10 and vacating the penalty and as modified the determination is confirmed without costs, and the matter is remitted to respondent for further proceedings in accordance with the following Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a Tier III hearing, that he violated inmate rules 113.22 (7 NYCRR 270.2 [B] [14] [xiii]), 113.25 (7 NYCRR 270.2 [B] [14] [xvi]), and 114.10 (7 NYCRR 270.2 [B] [15] [i]). As conceded by respondent, the determination that petitioner violated inmate rule 114.10 is not supported by substantial evidence. Consequently, we modify the determination by granting the petition in part and annulling the determination that petitioner violated inmate rule 114.10. Because a single penalty was imposed and the record fails to specify any relation between the violations and that penalty, we further modify the determination by vacating the penalty, and we remit the matter to respondent for imposition of an appropriate penalty on the remaining violations (see Matter of Whitt v Goord, 259 AD2d 1045). We have examined petitioner’s remaining contentions and conclude that they are without merit. Present — Pine, J.P., Hurlbutt, Kehoe, Burns and Hayes, JJ.