Opinion
June 3, 1999
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Washington County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.
Ronnie Covington, Stormville, petitioner in person.
Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondents.
Before: MIKOLL, J.P., CREW III, PETERS, CARPINELLO and GRAFFEO, JJ.
MEMORANDUM AND JUDGMENT
Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule which prohibits inmates from disobeying a direct order. Petitioner commenced this CPLR article 78 proceeding challenging the determination contending,inter alia, that the determination is not supported by substantial evidence.
Petitioner was found not guilty of creating a disturbance and interfering with an employee.
We agree. In reaching the determination of guilt, the Hearing Officer relied solely on petitioner's testimony. A review of petitioner's testimony fails to establish that any direct order was given to him. Although the misbehavior report would have been sufficient to support the determination of guilt, an administrative determination cannot be confirmed upon grounds not invoked by the agency (see, Matter of Lopez v. Coombe, 229 A.D.2d 639 n). Accordingly, given the lack of testimony that petitioner was issued a direct order, we are compelled to annul the determination. Given our conclusion, we need not address petitioner's remaining contentions.
ADJUDGED that the determination is annulled, without costs, petition granted and respondents are directed to expunge all references to this matter from petitioner's institutional record.