Robles v. Coughlin

191 A.D.2d 1037, 595 N.Y.S.2d 348

Opinion

—Determination unanimously modified on the law and as modified confirmed and matter remitted to respondent Superintendent for further proceedings in accordance with the following Memorandum: Respondents concede that it was error to deny petitioner’s request for the names of the correction officers on the gallery at the time of the disturbance resulting in the charges against petitioner. Respondents further concede that the determination finding petitioner guilty of violating inmate rules 104.10, 107.10 and 116.10 (7 NYCRR 270.2 [B] [5] [i]; [8] [i]; [17] [i]), to which petitioner pleaded not guilty, should be annulled. Petitioner, however, pleaded guilty to the charge that he violated prison rule 104.12 (7 NYCRR 270.2 [B] [5] [iii]) by participating in a demonstration. Because petitioner admitted that violation, the failure to provide the requested information did not prejudice his defense with respect to that charge (see, Matter of Giano v Sullivan, 137 AD2d 529, 531, lv denied 72 NY2d 804).

We modify, therefore, by annulling so much of the determination as found petitioner guilty of violating inmate rules 104.10, 107.10 and 116.10, vacating the penalty imposed, directing that all entries in petitioner’s records relating thereto be expunged and remitting the matter to respondent Superintendent for the imposition of an appropriate penalty on the violation of rule 104.12 (see, Matter of Brooks v Coughlin, 182 AD2d 1115; Matter of Ligreci v Honors, 171 AD2d 1058, lv denied 78 NY2d 853). (Article 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present —Denman, P. J., Green, Balio, Fallon and Boehm, JJ.