People ex rel. Gayle v. Koehler

183 A.D.2d 472, 583 N.Y.S.2d 415, 1992 N.Y. App. Div. LEXIS 6808

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 1992
• Status: Published

Opinions

—Order, Supreme Court, Bronx County (Burton Hecht, J.), dated November 24, 1989, dismissing the pro se CPLR article 78 petition, which sought to nullify and expunge from the record the disciplinary finding made against relator, is reversed, on the law and the facts, the petition is granted and the finding annulled, without costs.

While confined at Rikers Island, relator was charged in a disciplinary proceeding with arson, assault on a correction officer and refusal to obey an order. Relator was found guilty in absentia and sentenced to fifty days of punitive segregation.

It is undisputed that relator was found guilty without having received a copy of the institution’s rules and regulations in violation of Correction Law § 138 (1), (2) and (5). The fact that relator’s conduct violated the Penal Law is not a basis for disciplinary action which is in violation of the Correction Law (Matter of Collins v Hammock, 52 NY2d 798 [1980]).

We also reject the argument made by respondent that the relator waived any claim based on the Correction Law. No transcript of the hearing was made. The record submitted on appeal indicates only that the relator refused to sign a notice of the hearing and refused to sign a written notice of the disposition. There is nothing to indicate that he refused to attend the hearing.

Under these circumstances the finding should be annulled. Concur — Carro, J. P., Asch and Smith, JJ.