Redmond v. Goord

6 A.D.3d 1207, 775 N.Y.S.2d 715, 2004 N.Y. App. Div. LEXIS 6294

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 2004
• 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, entered October 22, 2003 in Wyoming County [Mark H. Dadd, A.J.]) to review a determination of respondent. The determination found after a Tier III hearing that petitioner violated various inmate rules.

It is hereby ordered that the determination be and the same hereby is unanimously modified on the law by granting the petition in part, annulling that part of the determination finding that petitioner violated inmate rule 113.15 (7 NYCRR 270.2 [B] [14] [vi]) and as modified the determination is confirmed without costs, and respondent is directed to expunge from petitioner’s institutional record all references thereto.

Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 78 to challenge the determination that he violated inmate rules 105.12 (7 NYCRR 270.2 [B] [6] [iii] [unauthorized organizational activities]) and 113.15 (7 NYCRR 270.2 [B] [14] [vi] [unauthorized exchange of personally owned articles]). The gaps in the hearing transcript due to inaudible portions of the tape “do not preclude meaningful review of petitioner’s contentions, and petitioner has not demonstrated that he was prejudiced thereby” (Matter of O’Reilly v Goord, 270 AD2d 858, 858 [2000]). The misbehavior report and the testimony of its author and another correction officer constitute substantial evidence supporting the determination that petitioner violated inmate rule 105.12 (see People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]). As respondent correctly concedes, however, the determination that petitioner violated inmate rule 113.15 is not supported by substantial evidence. We therefore modify the determination accordingly, and we direct respondent to expunge from petitioner’s institutional record all references to the violation of inmate rule 113.15 (see Matter of Maybanks v Goord, 306 AD2d 839, 840 [2003]; Matter of Contrera v Coombe, 236 AD2d 661, 662-663 [1997]). Present— Green, J.P., Pine, Kehoe, Gorski and Hayes, JJ.