Opinion
March 11, 1994
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Pine, J.P., Fallon, Callahan, Davis and Boehm, JJ.
Determination unanimously modified on the law and as modified confirmed and matter remitted to respondent Superintendent, Attica Correctional Facility, for further proceedings in accordance with the following Memorandum: Petitioner commenced this CPLR article 78 proceeding to review a determination by the Superintendent of Attica Correctional Facility finding that petitioner violated inmate rules 180.14 (refusing to undergo urinalysis testing [ 7 NYCRR 270.2 (B) (26) (v)]) and 106.10 (failing to obey an order of facility personnel [ 7 NYCRR 270.2 (B) (7) (i)]).
The finding that petitioner violated inmate rule 180.14 was error. Although petitioner refused to undergo the urinalysis test, he was not informed, as required by 7 NYCRR 1020.4 (c), "that his refusal constitut[ed] a violation of facility rules and that he may incur the same disciplinary disposition that a positive urinalysis result could have supported", nor did prison officials follow the directive that "[t]he resultant misbehavior report shall indicate that the inmate was informed of [the consequences of his refusal]" ( 7 NYCRR 1020.4 [c]). When the Department of Correctional Services fails to comply with its own regulations, the determination should be annulled (Matter of Garcia v. LeFevre, 64 N.Y.2d 1001, 1003; Matter of Rollison v Scully, 181 A.D.2d 734; see, Matter of Estrella v. Coughlin, 131 A.D.2d 760, lv denied 70 N.Y.2d 606; Matter of Schumate v Hammock, 85 A.D.2d 640, lv denied 56 N.Y.2d 501).
The Superintendent's finding that petitioner violated inmate rule 106.10 was not similarly infirm. By his refusal to undergo the urinalysis, petitioner disobeyed a direct order. "The risks inescapably attendant on the refusal of an inmate to carry out even an illegal order of a correction officer are such as to require compliance at the time with the right of retrospective administrative or judicial determination as to the legality of the order" (Matter of Rivera v. Smith, 63 N.Y.2d 501, 515; see also, Matter of Scott v. Leonardo, 178 A.D.2d 865; Matter of Matthews v. Kelly, 119 A.D.2d 1004, 1005). The statements of the correction officer who ordered petitioner to undergo the urinalysis test and authored the misbehavior report constituted substantial evidence that petitioner failed to follow a direct order (see, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139).
We modify the Superintendent's determination by vacating the finding that petitioner violated inmate rule 180.14, expunging all reference thereto from petitioner's institutional record and dismissing that charge. The finding that petitioner violated inmate rule 106.10 is confirmed. Because the record imposes one penalty and fails to specify any relation between the charges and the penalty imposed, the penalty is vacated, and the matter is remitted to the Superintendent for imposition of an appropriate penalty on the charge sustained.