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

930
TP 16-00313
PRESENT: WHALEN, P.J., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF MICHAEL FREDERICK, PETITIONER,

                    V                             MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF CORRECTIONS AND
COMMUNITY SUPERVISION LT. DANIEL WALAWENDER,
RESPONDENT.


MICHAEL FREDERICK, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO 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 24, 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 those parts of the determination finding that petitioner
violated inmate rules 102.10 (7 NYCRR 270.2 [B] [3] [i]) and 107.10 (7
NYCRR 270.2 [B] [8] [i]) and vacating the penalty 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 inmate rules, and the matter is remitted to
respondent for further proceedings in accordance with the following
memorandum: Petitioner commenced this CPLR article 78 proceeding,
transferred to this Court pursuant to CPLR 7804 (g), seeking to annul
the determination, following a tier II hearing, that he violated
inmate rules 102.10 (7 NYCRR 270.2 [B] [3] [i] [threats]), 107.10 (7
NYCRR 270.2 [B] [8] [i] [interference with an employee]), and 107.11
(7 NYCRR 270.2 [B] [8] [ii] [harassment]). Petitioner pleaded guilty
to violating inmate rule 107.11, and therefore his contention that the
determination with respect to that rule is not supported by
substantial evidence is without merit (see Matter of Liner v Fischer,
96 AD3d 1416, 1417). Respondent correctly concedes that the
determination with respect to inmate rules 102.10 and 107.10 is not
supported by substantial evidence. We therefore modify the
determination and grant the petition in part by annulling those parts
of the determination finding that petitioner violated those rules, and
we direct respondent to expunge from petitioner’s institutional record
                                 -2-                           930
                                                         TP 16-00313

all references to the violation of those rules. “Because a single
penalty was imposed and the record fails to specify any relation
between the violations and that penalty,” we further modify the
determination by vacating the penalty, and we remit the matter to
respondent for imposition of an appropriate penalty on the remaining
violation (Matter of Pena v Goord, 6 AD3d 1106, 1106). We have
considered petitioner’s remaining contentions and conclude that they
are without merit.




Entered:   November 10, 2016                    Frances E. Cafarell
                                                Clerk of the Court
