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

1225
TP 15-00597
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF GABRIEL M. WILLIAMS, PETITIONER,

                    V                               MEMORANDUM AND ORDER

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


GABRIEL M. WILLIAMS, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF 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, Erie County [M. William
Boller, A.J.], entered April 9, 2015) to review a determination of
respondent. The determination found after a tier III 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 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 in accordance with the following memorandum: 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 AD3d 1328,
1329). 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 NY2d 130, 139).

     As respondent correctly concedes, however, the determination with
respect to inmate rule 101.22 is not supported by substantial evidence
                                 -2-                          1225
                                                         TP 15-00597

(see Matter of Monroe v Fischer, 87 AD3d 1300, 1301), 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 AD3d 1122, 1123, lv denied 22 NY3d 858).
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 AD3d at 1301). 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.




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
