Opinion
11-20-2015
In the Matter of Gabriel M. WILLIAMS, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.Gabriel M. Williams, Petitioner.
Gabriel M. Williams, Petitioner Pro Se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of Counsel), for Respondent. PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DeJOSEPH, JJ.
Gabriel M. Williams, Petitioner Pro Se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:
12 Petitioner commenced this proceeding pursuant to CPLR article 78 seeking review of a determination, following a tier III disciplinary hearing, that he violated inmate rules 101.22 (7 NYCRR 270.2 [B][2][v] [stalking] ), 103.20 (7 NYCRR 270.2[B][4][ii] [soliciting] ), and 121.12 (7 NYCRR 270.2[B][22][iii] [telephone program violation] ). To the extent that petitioner contends that the determination finding that he violated inmate rule 121.12 is not supported by substantial evidence, we note that his plea of guilty to that violation precludes our review of his contention (see Matter of Edwards v. Fischer, 87 A.D.3d 1328, 1329, 930 N.Y.S.2d 358). We further conclude that there is substantial evidence to support the determination with respect to inmate rule 103.20 (see generally People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997).
345 As respondent correctly concedes, however, the determination with respect to inmate rule 101.22 is not supported by substantial evidence (see Matter of Monroe v. Fischer, 87 A.D.3d 1300, 1301, 930 N.Y.S.2d 330), and we therefore modify the determination accordingly. Inasmuch as the record establishes that petitioner has served his administrative penalty, we direct respondent to expunge from petitioner's institutional record all references to the violation of that inmate rule (see Matter of Stewart v. Fischer, 109 A.D.3d 1122, 1123, 971 N.Y.S.2d 618, lv. denied 22 N.Y.3d 858, 2013 WL 6598719). Although there is no need to remit the matter to respondent for reconsideration of those parts of the penalty already served by petitioner, we note that the Hearing Officer also recommended nine months' loss of good time, and the record does not reflect the relationship between the violations and that recommendation (see Monroe, 87 A.D.3d at 1301, 930 N.Y.S.2d 330). We therefore further modify the determination by vacating the recommended loss of good time, and we remit the matter to respondent for reconsideration of that recommendation in light of our decision with respect to inmate rule 101.22 (see id.).
We have reviewed petitioner's remaining contentions and conclude that none warrants reversal or further modification.
It is hereby ORDERED that the determination so appealed from is unanimously modified on the law and the petition is granted in part by annulling that part of the determination finding that petitioner violated inmate rule 101.22 (7 NYCRR 270.2[B][2][v] ) and vacating the recommended loss of good time, and as modified the determination is confirmed without costs, respondent is directed to expunge from petitioner's institutional record all references to the violation of that rule, and the matter is remitted to respondent for further proceedings.