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

1095
TP 14-00430
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND VALENTINO, JJ.


IN THE MATTER OF NATHANIEL C. PARARA, PETITIONER,

                    V                               MEMORANDUM AND ORDER

MICHELLE A. ARTUS, SUPERINTENDENT,
LIVINGSTON CORRECTIONAL FACILITY, RESPONDENT.


NATHANIEL C. PARARA, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (J. RICHARD BENITEZ 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, Livingston County [Dennis S.
Cohen, A.J.], entered March 6, 2014) 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 without costs, the petition is granted
and respondent is directed to expunge from petitioner’s institutional
record all references to the violation of inmate rules 106.10 (7 NYCRR
270.2 [B] [7] [i]) and 118.30 (7 NYCRR 270.2 [B] [19] [viii]).

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul that part of the determination, following a tier II
disciplinary hearing, that he violated inmate rules 106.10 (7 NYCRR
270.2 [B] [7] [i] [refusing a direct order]) and 118.30 (7 NYCRR 270.2
[B] [19] [viii] [untidy cell]). We agree with petitioner that the
determination that he violated those disciplinary rules is not
supported by substantial evidence (see generally People ex rel. Vega v
Smith, 66 NY2d 130, 139), and we therefore modify the determination
accordingly. “Although a misbehavior report may by itself constitute
substantial evidence of guilt” (Matter of Elder v Fischer, 115 AD3d
1177, 1177; see Vega, 66 NY2d at 140), here the misbehavior report
failed to establish that petitioner refused a direct order or that his
cube was in any way untidy. There was likewise no evidence to that
effect presented in the transcribed portions of the disciplinary
hearing. At most, the evidence established that petitioner left
property on top of his locker, the location of which was never
disclosed. When petitioner thereafter questioned the absence of his
property and received an unsatisfactory answer, he asked to speak with
a sergeant. The misbehavior report alleges that, after he was told of
                                 -2-                          1095
                                                         TP 14-00430

a delay in speaking with the sergeant, petitioner yelled that he
wanted to see the sergeant immediately. At that point, petitioner was
ordered “to go to his cube[] and be quiet[,] which he did.” There is
thus no evidence that petitioner refused a direct order or that his
cube was untidy.

     Based on our determination, we do not address petitioner’s
remaining contentions.




Entered:   November 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
