         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1069
TP 12-00298
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF WALTER BALKUM, PETITIONER,

                    V                              MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


WALTER BALKUM, 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, Cayuga County [Thomas G.
Leone, A.J.], entered February 8, 2012) 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 those parts of the determination finding that petitioner
violated inmate rules 100.13 (7 NYCRR 270.2 [B] [1] [iv]) and 104.13
(7 NYCRR 270.2 [B] [5] [iv]) 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 those rules, and the matter
is remitted to respondent for further proceedings in accordance with
the following Memorandum: Petitioner commenced this CPLR article 78
proceeding seeking to annul the determination, following a Tier III
hearing, that he had violated various inmate rules, including inmate
rules 100.13 (7 NYCRR 270.2 [B] [1] [iv] [fighting]) and 104.13 (7
NYCRR 270.2 [B] [5] [iv] [creating a disturbance]). As respondent
correctly concedes, the determination with respect to those two inmate
rules 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 those parts
of the determination finding that petitioner violated those two inmate
rules, and we direct respondent to expunge from petitioner’s
institutional record all references to the violation of those rules.
“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 there was also a recommended loss of good
time, and the record does not reflect the relationship between the
                                 -2-                          1069
                                                         TP 12-00298

violations and that recommendation” (Matter of Monroe v Fischer, 87
AD3d 1300, 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 (see id.).

     We have considered petitioner’s remaining contentions and
conclude that they are without merit.




Entered:   September 28, 2012                   Frances E. Cafarell
                                                Clerk of the Court
