SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
November 21, 2008
IN THE MATTER OF JOHN RICHARD, PETITIONER,
THOMAS POOLE, SUPERINTENDENT, FIVE POINTS CORRECTIONAL FACILITY, RESPONDENT.
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, Seneca County [Dennis F. Bender, A.J.], entered October 31, 2007) to annul a determination of respondent. The determination found after a Tier II hearing that petitioner violated various inmate rules.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: HURLBUTT, J.P., MARTOCHE, SMITH, FAHEY, AND PERADOTTO, JJ.
It is hereby ORDERED that the determination 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 113.23 (7 NYCRR 270.2 [B]  [xiii]) and by vacating that part of the penalty confiscating property and as modified the determination is confirmed without costs, and respondent is directed to expunge from petitioner's institutional record all references to the violation of that rule and to return the confiscated property to petitioner.
Petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul the determination, following a Tier II hearing, that he violated inmate rules 106.10 (7 NYCRR 270.2 [B]  [i] [failing to obey an order promptly and without argument]) and 113.23 (7 NYCRR 270.2 [B]  [xiii] [possessing unauthorized items]). Respondent correctly concedes that the determination with respect to inmate rule 113.23 is not supported by substantial evidence (see generally People ex rel. Vega v Smith, 66 NY2d 130, 139). We therefore modify the determination and grant the petition in part by annulling that part of the determination finding that petitioner violated inmate rule 113.23 and by vacating that part of the penalty confiscating property. Respondent is directed to expunge from petitioner's institutional record all references to the violation of that rule and to return the confiscated property to petitioner. We have considered petitioner's remaining contentions and conclude that they are lacking in merit.
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