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

770
TP 15-02181
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF STEVEN ANDERSON, PETITIONER,

                    V                             MEMORANDUM AND ORDER

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


STEVEN ANDERSON, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE
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, Oneida County [Patrick F.
MacRae, J.], entered June 22, 2015) 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 that part of the determination that found that petitioner
violated inmate rule 101.10 (7 NYCRR 270.2 [B] [2] [i]) and as
modified the determination is confirmed without costs and respondent
is directed to expunge from petitioner’s institutional record all
references to the violation of that inmate rule.

     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 III hearing, that
he violated inmate rules 101.10 (7 NYCRR 270.2 [B] [2] [i] [sexual
act]) and 180.10 (7 NYCRR 270.2 [B] [26] [i] [facility visiting
violation]). Petitioner pleaded guilty to violating inmate rule
180.10, and therefore his contention that the determination with
respect to that inmate rule is not supported by substantial evidence
is without merit (see Matter of Liner v Fischer, 96 AD3d 1416, 1417).
In addition, inasmuch as petitioner admitted that violation, the
procedural issues raised by petitioner regarding the hearing that was
held with respect to the remaining violation “did not prejudice his
defense” on inmate rule 180.10 (Matter of Robles v Coughlin, 191 AD2d
1037, 1038).

     Respondent concedes that the determination finding that
petitioner violated inmate rule 101.10 is not supported by substantial
                                 -2-                           770
                                                         TP 15-02181

evidence. We therefore modify the determination by granting the
petition in part and annulling that part of the determination finding
that petitioner violated that inmate rule, and we direct respondent to
expunge from petitioner’s institutional record all references thereto
(see Matter of Reid v Saj, 119 AD3d 1445, 1446). Because the penalty
has already been served and there was no recommended loss of good
time, there is no need to remit the matter to respondent for
reconsideration of the penalty.




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
