Opinion
December 31, 1998
Appeal from the Supreme Court, Erie County, Burns, J.
Determination unanimously annulled on the law without costs and petition granted in accordance with the following Memorandum: The determination that petitioner violated inmate rule 180.11 ( 7 NYCRR 270.2 [B] [26] [ii]) is not supported by substantial evidence. Petitioner's receipt of correspondence from another inmate's aunt does not violate any of the policies and procedures governing the inmate correspondence program (see, 7 N.Y.CRR part 720; cf., Matter of Montgomery v. Jones, 88 A.D.2d 1003). Substantial evidence is also lacking to support the determination that petitioner violated inmate rule 180.17 ( 7 NYCRR 270.2 [B] [26] [vii]). Petitioner's possession of legal documents belonging to another inmate, without more, does not establish that petitioner provided unauthorized legal assistance to another inmate ( cf., Matter of Tate v. Senkowski, 215 A.D.2d 903, 904, lv denied 86 N.Y.2d 708; Matter of Rivera v. Coughlin, 210 A.D.2d 543, 544). We therefore grant the petition, annul the determination and direct that all references thereto be expunged from petitioner's institutional record.
Present — Green, J. P., Wisner, Hayes, Balio and Fallon, JJ.