Opinion
November 7, 1984
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Hancock, Jr., J.P., Callahan, Denman, Boomer and Moule, JJ.
Judgment unanimously reversed and petition granted, in accordance with the following memorandum: The regulations relating to prison disciplinary proceedings no longer expressly require the hearing officer to ascertain whether the record of the proceedings contains substantial evidence in support of the charge (see former 7 NYCRR 253.4 [g]; Matter of Jones v Smith, 120 Misc.2d 445, 449, aff'd. 101 A.D.2d 705; cf. Matter of Rodriguez v Ward, 64 A.D.2d 792, 793); nevertheless where there has been a hearing at which the inmate has denied the charges and submitted proof in support of his denial, substantial evidence remains the proper standard for judicial review (see, e.g., Matter of Lopez v Smith, 105 A.D.2d 1124; Matter of Garcia v LeFevre, 102 A.D.2d 1004; Matter of Jones v Smith, supra; Matter of Jennings v Coughlin, 99 A.D.2d 635; Matter of Kincaide v Coughlin, 86 A.D.2d 893, app dsmd 57 N.Y.2d 682). In this proceeding, the hearing officer relied solely upon a written misbehavior report prepared by a corrections employee. Upon a review of the record as a whole, we do not find substantial evidence to support the charges and they must therefore be dismissed.
Inasmuch as the relief sought in the petition could not have resulted in relator's release from prison, habeas corpus is not the proper remedy. We convert the proceeding to one under CPLR article 78 (see CPLR 103, subd [c]).