                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 5, 2015                   519142
________________________________

In the Matter of IAN DAWES,
                    Appellant-
                    Petitioner,
      v                                     MEMORANDUM AND ORDER
                                                 AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent-
                    Respondent.
________________________________


Calendar Date:   December 2, 2014

Before:   Lahtinen, J.P., McCarthy, Devine and Clark, JJ.

                             __________


     Ian Dawes, Gowanda, appellant-petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Owen Demuth
of counsel), for respondent-respondent.

                             __________


      (1) Appeal from a judgment of the Supreme Court (Brockway,
J.), entered June 4, 2014 in Chemung County, which dismissed that
part of the petition, in a proceeding pursuant to CPLR article
78, to review two determinations of the Central Office Review
Committee denying petitioner's grievances, and (2) proceeding
pursuant to CPLR article 78 (transferred to this Court by order
of the Supreme Court, entered in Chemung County) to review a
determination of the Superintendent of Southport Correctional
Facility which found petitioner guilty of violating a prison
disciplinary rule.

      Petitioner commenced this CPLR article 78 proceeding
challenging, as is relevant herein, a tier II disciplinary
                              -2-                519142

determination finding him guilty of disobeying a direct order and
the denial of two grievances regarding his confinement in the
special housing unit with regard to the number of showers
permitted per week and the reimposition of a 30-day adjustment
period following the issuance of a new misbehavior report.
Supreme Court, among other things, dismissed that part of the
petition that challenged the two grievances and transferred to
this Court that portion of the petition challenging the tier II
disciplinary proceeding.

      Initially, to the extent that petitioner challenges the
denial of his two grievances, we note that petitioner has since
been transferred from the correction facility where the
grievances arose. As such, he is no longer aggrieved by those
policies and, therefore, any challenge thereto is rendered moot
(see Matter of Abreu v White, 85 AD3d 1451, 1451 [2011]; Matter
of Ortiz v Simmons, 67 AD3d 1208, 1209 [2009]). Turning to the
tier II disciplinary determination, the Attorney General
concedes, and our review of the record confirms, that substantial
evidence does not support the tier II disciplinary determination
finding petitioner guilty of refusing a direct order.
Consequently, the determination must be annulled and all
references thereto expunged from petitioner's institutional
record (see Matter of Sloane v McKinney, 48 AD3d 850, 850
[2008]).

     Lahtinen, J.P., McCarthy, Devine and Clark, JJ., concur.
                              -3-                  519142

      ORDERED that the appeal from the judgment entered June 4,
2014 is dismissed, as moot, without costs.

      ADJUDGED that the determination is annulled, without costs,
petition granted to that extent, and the Superintendent of
Southport Correctional Facility is directed to expunge all
references to this matter from petitioner's institutional record.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
