Perez v. Annucci

126 A.D.3d 1387, 4 N.Y.S.3d 457

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 2015
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Michael M. Mohun, A.J.], entered September 22, 2014) to review a determination of respondent. The determination found after a tier III hearing that petitioner had violated an inmate rule.

It is hereby ordered that the determination is unanimously annulled on the law without costs, the petition is granted, the penalty is vacated, and respondent is directed to expunge from petitioner’s institutional record all references to the violation of inmate rule 105.14 (7 NYCRR 270.2 [B] [6] [v]).

Memorandum: In this CPLR article 78 proceeding, petitioner seeks review of a tier III hearing determination finding him guilty of violating inmate rule 105.14 (7 NYCRR 270.2 [B] [6] [v] [unauthorized organizations]). We agree with petitioner that the determination is not supported by substantial evidence (see generally People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]). The evidence at the disciplinary hearing established that petitioner had possession of printed material related to an unauthorized organization, but there was no evidence that the “material advocates either expressly or by clear implication, violence based upon race, religion, sex, sexual orientation, creed, law enforcement status or violence or acts of disobedience against department employees or that could facilitate organizational activity within the institution” (7 NYCRR 270.2 [B] [6] [v]; see Matter of Kimbrough v Fischer, 96 AD3d 1251, 1252 [2012]).

Present — Centra, J.P., Peradotto, Carni, Sconiers and DeJoseph, JJ.