                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 23, 2016                     521341
________________________________

In the Matter of REGINALD
   PETTY,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   May 3, 2016

Before:   McCarthy, J.P., Egan Jr., Rose, Devine and Aarons, JJ.

                               __________


     Reginald Petty, Malone, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.

                               __________


      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Albany County) to
review a determination of the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      After another inmate unplugged the television that
petitioner had been watching, a verbal disagreement ensued.
Thereafter, petitioner was charged in a misbehavior report with
violent conduct and creating a disturbance. Following a tier III
disciplinary hearing, petitioner was found guilty of both
charges. On administrative appeal, that determination was upheld
with a modified penalty. This CPLR article 78 proceeding
followed.
                              -2-                521341

      Initially, respondent concedes, and we agree, that the part
of the determination finding petitioner guilty of violent conduct
is not supported by the record. Likewise, the record does not
contain substantial evidence to support the determination of
guilt as to the charge that petitioner created a disturbance.
The description within the misbehavior report and the testimony
of its author that petitioner "disrupted the order of the
facility" is conclusory and does not permit intelligible review
of whether petitioner violated 7 NYCRR 270.2 (B) (5) (iv). 7
NYCRR 270.2 (B) (5) (iv) provides that "[a]n inmate shall not
engage in conduct which disturbs the order of any part of the
facility" and then defines the activities that would constitute
such conduct as "includ[ing], but . . . not limited to, loud
talking in a mess hall, program area or corridor, talking after
the designated facility quiet time, playing a radio, television
or tape player without a headphone or through a headphone in a
loud or improper manner, or playing a musical instrument in a
loud or improper manner." Here, the record provides, at most,
that petitioner engaged in a verbal disagreement with a fellow
inmate as to what channel to watch on television. While the
record is replete with evidence that the fellow inmate thereafter
violated a number of disciplinary rules, his actions cannot be
attributed to petitioner. In the absence of any evidence
describing how petitioner disrupted the order of the facility due
to his disagreement with the fellow inmate, there is not
substantial evidence to support that charge (see Matter of Lewis
v Lee, 138 AD3d 746, 747 [2016]; Matter of Williams v Fischer, 69
AD3d 1278, 1278 [2010]).

      McCarthy, J.P., Egan Jr., Rose, Devine and Aarons, JJ.,
concur.
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      ADJUDGED that the determination is annulled, without costs,
petition granted, and the Commissioner of Corrections and
Community Supervision is directed to expunge all references to
this matter from petitioner's institutional record.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
