Hicks v. Scully

159 A.D.2d 624

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 1990
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent, dated April 29, 1988, finding the petitioner guilty of possessing money, and imposing a penalty, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (West, J.), entered October 24, 1988, which dismissed the proceeding.

Ordered that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, the determination is annulled, the charge is dismissed, and the respondent is directed to expunge from the petitioner’s institutional record all reference to the charges underlying the Superintendent’s proceeding.

The second extension granted to the respondent pursuant to 7 NYCRR 251-5.1 was invalid, as it was obtained after.the first extension had expired and while the petitioner was still confined in a special housing unit (see, Matter of Wysinger v Scully, 150 AD2d 468; Matter of Brito v Sullivan, 141 AD2d 819). In any event, the hearing was not completed until after the date prescribed by the second extension (see, 7 NYCRR 251-5.1 [b]). Thus, the determination is annulled and all references to the charges underlying the Superintendent’s proceeding in the petitioner’s institutional record are directed to be expunged (see, Matter of Coley v Sullivan, 126 AD2d 641; Matter of Lozada v Scully, 108 AD2d 859). Brown, J. P., Lawrence, Fiber and Rosenblatt, JJ., concur.