Morrero v. Coombe

236 A.D.2d 887, 654 N.Y.S.2d 222, 1997 N.Y. App. Div. LEXIS 1906

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 1997
• Status: Published

Opinion

—Determination unanimously annulled on the law without costs and petition granted. Memorandum: Respondent’s determination that petitioner possessed unauthorized organizational materials or insignias in violation of 7 NYCRR 270.2 (B) (6) (iii) is not supported by substantial evidence. The record establishes that the alleged unauthorized materials were three photographs of petitioner and other individuals. The photographs had been reviewed by correction officers at Wyoming Correctional Facility and were never deemed contraband. Indeed, they were packed by personnel at the Wyoming Correctional Facility and shipped as petitioner’s property to Attica Correctional Facility, where upon arrival they were seized by Attica correction officers as contraband. Under those unique circumstances, we conclude that respondent’s determination that the photographs constitute unauthorized organizational materials must be annulled. Thus, the determination must be annulled and all reference to the proceeding expunged from petitioner’s institutional record (see generally, Matter of Varela v Coughlin, 199 AD2d 1007, 1008; Matter of Parker v Kelly, 140 AD2d 993). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present—Green, J. P., Lawton, Doerr, Balio and Fallon, JJ.