Haddad v. Selsky

303 A.D.2d 946, 755 N.Y.S.2d 684, 2003 N.Y. App. Div. LEXIS 2907

Opinion

—CPLR article 78 proceeding transferred to this Court by an order of Supreme Court, Seneca County (Bender, J.), entered June 5, 2002, seeking review of a determination after a Tier III hearing.

It is hereby ordered that the determination be and the same hereby is unanimously modified on the law and the petition is granted in part by annulling the determination that petitioner violated inmate rule 104.12 and directing that all references thereto be expunged from petitioner’s institutional record and as modified the determination is confirmed without costs.

Memorandum: Petitioner challenges the determination following a Tier III hearing finding him guilty of violating inmate rules 104.12 (7 NYCRR 270.2 [B] [5] [iii]) and 104.13 (7 NYCRR 270.2 [B] [5] [iv]). The misbehavior report and testimony of its author constitute substantial evidence to support the determination that petitioner violated inmate rule 104.13 (see Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]; People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]). Respondents concede, however, that the determination that petitioner violated inmate rule 104.12 is not supported by substantial evidence (see Matter of Maldonado v Goord, 272 AD2d 921 [2000]). Petitioner has already served the penalty imposed. We therefore modify the determination and grant the petition in part by annulling the determination that petitioner violated inmate rule 104.12 and directing that all references thereto be expunged from petitioner’s institutional record. Present — Pigott, Jr., P.J., Wisner, Scudder, Burns and Gorski, JJ.