Opinion
No. TP 07-01548.
March 14, 2008.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Mark H. Dadd, A.J.], entered July 24, 2007) to review a determination of respondent. The determination found after a tier II hearing that petitioner violated various inmate rules.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, ATTICA (SUSAN K. JONES OF COUNSEL), FOR PETITIONER.
ANDREW M. CUOMO, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF COUNSEL), FOR RESPONDENT.
Present: Hurlbutt, J.P., Centra, Fahey, Peradotto and Pine, JJ.
It is hereby ordered that the determination is unanimously modified on the law and the petition is granted in part by annulling those parts of the determination finding that petitioner violated inmate rules 106.10 ( 7 NYCRR 270.2 [B] [7] [i]), 107.10 ( 7 NYCRR 270.2 [B] [8] [i]), 109.10 ( 7 NYCRR 270.2 [B] [10] [i]), and 116.10 ( 7 NYCRR 270.2 [B] [17] [i]) and by vacating that part of the penalty imposing restitution and as modified the determination is confirmed without costs, and respondent is directed to expunge from petitioner's institutional record all references to the violations of those rules and to refund to petitioner's inmate account any restitution paid.
Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul the determination that he violated various inmate rules. The misbehavior report, authored by the laundry supervisor, established that petitioner gesticulated wildly and shouted profanities at her when she accused him of stealing and, contrary to petitioner's contention, the misbehavior report constitutes substantial evidence supporting the determination finding that he created a disturbance in violation of inmate rule 104.13 ( 7 NYCRR 270.2 [B] [5] [iv]; see generally People ex rel. Vega v Smith, 66 NY2d 130, 140).
As respondent correctly concedes, however, the determination finding that petitioner violated the remaining inmate rules set forth in the misbehavior report is not supported by substantial evidence. We therefore modify the determination and grant the petition in part by annulling those parts of the determination finding that petitioner violated those inmate rules, and respondent is directed to expunge from petitioner's institutional record all references to the violations of those rules.
Because we are annulling that part of the determination finding that petitioner stole property in violation of inmate rule 116.10 ( 7 NYCRR 270.2 [B] [17] [i]), we further modify the determination by vacating that part of the penalty imposing restitution for the stolen property in the amount of $96, and respondent is further directed to refund to petitioner's inmate account any restitution paid. In view of the fact that petitioner has served the remainder of the penalty imposed and no loss of good time was imposed, there is no need to remit the matter to respondent for reconsideration of the remainder of the penalty imposed ( see Matter of Maybanks v Goord, 306 AD2d 839, 840).