        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

510
TP 16-02057
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF JUNIOR COLLINS, PETITIONER,

                    V                             MEMORANDUM AND ORDER

ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK
STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF
COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. LANDERS OF
COUNSEL), FOR 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, Wyoming County [Michael M.
Mohun, A.J.], entered November 14, 2016) to review a determination of
respondent. The determination found after a tier II hearing that
petitioner had violated various inmate rules.

     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 104.13 (7 NYCRR 270.2 [B] [5] [iv]) 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 inmate rule.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination, after a tier II disciplinary
hearing, that he violated inmate rules 104.13 (7 NYCRR 270.2 [B] [5]
[iv] [creating a disturbance]), 107.10 (7 NYCRR 270.2 [B] [8] [i]
[interference with employee]), and 107.11 (7 NYCRR 270.2 [B] [8] [ii]
[harassment]). As respondent correctly concedes, the determination
that petitioner violated inmate rule 104.13 is not supported by
substantial evidence. We therefore modify the determination and grant
the petition in part by annulling that part of the determination
finding that petitioner violated inmate rule 104.13 (see Matter of
Vasquez v Goord, 284 AD2d 903, 903-904), and 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
AD3d 1122, 1123, lv denied 22 NY3d 858). Inasmuch as the record
establishes that petitioner has served his administrative penalty and
                                 -2-                           510
                                                         TP 16-02057

there was no recommended loss of good time, there is no need to remit
the matter to respondent for reconsideration of the penalty (see
Matter of Anderson v New York State Dept. of Corr. & Community
Supervision, 142 AD3d 1369, 1370; Matter of Maybanks v Goord, 306 AD2d
839, 840).

     Contrary to petitioner’s further contention, the determination
that he violated the remaining inmate rules is supported by
substantial evidence, including the misbehavior report, the testimony
of the correction officers, and a videotape of the incident (see
Matter of Holmes v Fischer, 114 AD3d 1158, 1159; see generally People
ex rel. Vega v Smith, 66 NY2d 130, 140). Petitioner failed to exhaust
his administrative remedies with respect to his remaining contention
that he was improperly punished for violating an unpublished rule, and
this Court has no discretionary authority to reach that contention
(see Matter of Polanco v Annucci, 136 AD3d 1325, 1325; Matter of
McFadden v Prack, 93 AD3d 1268, 1269).




Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
