                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 31, 2014                     517304
________________________________

In the Matter of THOMAS ARCHIE,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
BRIAN FISCHER, as Commissioner
   of Corrections and Community
   Supervision,
                    Respondent.
________________________________


Calendar Date:   June 9, 2014

Before:   Lahtinen, J.P., Stein, McCarthy, Lynch and Clark, JJ.

                             __________


     Thomas Archie, 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 respondent which found petitioner
guilty of violating certain prison disciplinary rules.

      Petitioner suffers from a mental health disorder for which
he has received treatment while in prison. During a therapy
session with mental health staff, petitioner stated that he
thought about choking an Office of Mental Health psychiatrist and
wanted to wrap a wire around the neck of a physician who had
treated him. As a result, he was charged in a misbehavior report
with making threats and engaging in conduct involving the threat
of violence. Following a tier III disciplinary hearing, he was
found guilty of the charges and the determination was affirmed on
administrative appeal. This CPLR article 78 proceeding ensued.
                              -2-                517304

      Upon reviewing the record, we conclude that substantial
evidence does not support the determination of guilt. Although
petitioner undeniably made the statements at issue, the
psychologist who prepared the misbehavior report testified that
she was unable to determine if petitioner actually meant to harm
the individuals in question or if he was speaking out of
frustration. It is undisputed that petitioner suffers from a
mental health disorder and that his statements were made during a
therapy session in which he was encouraged to express his
feelings. Significantly, there was no evidence presented that
the statements made by petitioner were intended as "threats."
Accordingly, under the circumstances presented, we find that
there was no violation of the disciplinary rules at issue and
that the determination must be annulled (see generally Matter of
Murray v Fischer, 104 AD3d 1007, 1008-1009 [2013]; Matter of
Allen v Goord, 14 AD3d 961 [2005]; Matter of Brown v Selsky, 278
AD2d 779, 780 [2000]; compare Matter of Goncalves v Goord, 290
AD2d 610, 610-611 [2002]).

      Lahtinen, J.P., Stein, McCarthy, Lynch and Clark, JJ.,
concur.
                              -3-                  517304

      ADJUDGED that the determination is annulled, without costs,
petition granted and respondent is directed to expunge all
references thereto from petitioner's institutional record.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
