Opinion
(1653) TP 01-01391
December 21, 2001.
(CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.)
PRESENT: PINE, J.P., WISNER, KEHOE, GORSKI AND LAWTON, JJ.
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:
The misbehavior report and the testimony of its author at the Tier III hearing constitute substantial evidence supporting the determination that petitioner violated inmate rules 104.13 ( 7 NYCRR 270.2 [B] [5] [iv]) and 106.10 ( 7 NYCRR 270.2 [B] [7] [i]) ( see, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139). Respondent concedes, however, that the determination that petitioner violated inmate rule 107.11 ( 7 NYCRR 270.2 [B] [8] [ii]) is not supported by substantial evidence. We therefore modify the determination and grant the petition in part by annulling the determination that petitioner violated inmate rule 107.11. Although the penalty of 180 days' keeplock and 180 days' loss of privileges has already been served and thus there is no need to remit the matter to respondent for reconsideration of that penalty ( cf., Matter of Spaight v. Goord, 258 A.D.2d 935, 936, lv denied 93 N.Y.2d 807), there was also a recommended loss of good time, and the record does not disclose any relation between the violations and that recommendation. We therefore further modify the determination by vacating that recommendation, and we remit the matter to respondent for reconsideration of the recommended loss of good time ( see, Matter of Elliott v. Johnson, 275 A.D.2d 900, 901).