Webb v. Goord

261 A.D.2d 913, 691 N.Y.S.2d 226, 1999 N.Y. App. Div. LEXIS 4981

Opinion

—Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: Petitioner was found guilty of violating inmate rules 180.14 (7 NYCRR 270.2 [B] [26] [v] [refusing to undergo urinalysis testing]) and 106.10 (7 NYCRR 270.2 [B] [7] [i] [failing to obey an order of facility personnel]). We agree with petitioner that the determination finding him guilty of refusing to undergo urinalysis testing must be annulled because the misbehavior report failed to state that petitioner was advised of his rights in the event of his refusal as required by 7 NYCRR 1020.4 (c) (see, Matter of Gittens v Goord, 249 AD2d 622; Matter of Roman v Coughlin, 202 AD2d 1000, 1001). Petitioner’s refusal, however, supports the determination that petitioner refused to obey an order of facility personnel, regardless of the legality of the order (see, Matter of Roman v Coughlin, supra, at 1001). Thus, we modify the determination and grant the petition in part by annulling the determination that petitioner violated inmate rule 180.14. Because one penalty was imposed and the record fails to specify any relation between the violations and the penalty, we further modify the determination by vacating the penalty, and we remit the matter to respondent for imposition of an appropriate penalty on the remaining violation (see, Matter of Roman v Coughlin, supra, at 1001-1002). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present — Denman, P. J., Pine, Pigott, Jr., Hurlbutt and Balio, JJ.