Opinion
March 9, 1992
Appeal from the Supreme Court, Dutchess County (Jiudice, J.).
Ordered that the judgment is reversed, on the law, without costs or disbursements, the determination is annulled, the charge is dismissed, and the respondent is directed to expunge all references to the charge and the proceedings from the petitioner's institutional records.
Where the Department of Correctional Services fails to comply with its own regulations in arriving at an administrative determination, that determination cannot stand (see, e.g., Matter of Garcia v LeFevre, 64 N.Y.2d 1001, 1003; Matter of Estrella v Coughlin, 131 A.D.2d 760; Matter of Schumate v Hammock, 85 A.D.2d 640; Matter of Longo v Fogg, 71 A.D.2d 955).
7 N.Y.CRR part 1010 dictates how correctional facilities should deal with "[t]he possession by inmates or visitors of contraband drugs" ( 7 NYCRR 1010.3). 7 NYCRR 1010.5 provides that in a disciplinary hearing on such charges,
"[t]he record * * * must include:
"(a) the request for test of suspected contraband drugs form;
"(b) the contraband test procedure form;
"(c) the test report prepared by an outside agency subsequent to testing of the substance, if any; [and]
"(d) a statement of the scientific principals and validity of the testing materials and procedures used" (emphasis supplied).
Where, as in the case at bar, none of these required documents is introduced into evidence, the substantial evidence requirement is not met (see, e.g., Matter of Moss v Scully, 152 A.D.2d 577; Matter of Sanchez v Hoke, 116 A.D.2d 965; Matter of Tal v Scully, 139 Misc.2d 192, 193). In consequence, the administrative determination is annulled and all references to the Superintendent's proceeding should be expunged from the petitioner's institutional records (see, e.g., Matter of Cunningham v LeFevre, 130 A.D.2d 809, 810; Matter of Moss v Scully, supra; Matter of Tal v Scully, supra). Harwood, J.P., Balletta, O'Brien and Ritter, JJ., concur.