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

791
TP 13-00268
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF ANTOINE FREEMAN, PETITIONER,

                    V                             MEMORANDUM AND ORDER

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


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (ADAM W. KOCH OF
COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF 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, Wyoming County [Mark H.
Dadd, A.J.], entered February 4, 2013) 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 that part of the determination finding that petitioner
violated inmate rule 107.20 (7 NYCRR 270.2 [B] [8] [iii]) 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
seeking to annul the determination, following a tier II disciplinary
hearing, that he violated inmate rules 107.20 (7 NYCRR 270.2 [B] [8]
[iii] [false statement or information]) and 109.12 (7 NYCRR 270.2 [B]
[10] [iii] [movement regulation violation]). Respondent correctly
concedes that the determination that petitioner violated inmate rule
107.20 is not supported by substantial evidence (see generally Matter
of Rodriguez v Fischer, 96 AD3d 1374, 1374-1375). We therefore modify
the determination and grant the petition in part by annulling that
part of the determination finding that petitioner violated inmate rule
107.20, and we direct respondent to expunge from petitioner’s
institutional record all references to the violation of that inmate
rule (see id. at 1375). Inasmuch as the record demonstrates that
petitioner has served his administrative penalty, the appropriate
remedy is expungement of all references to the violation of that rule
                                 -2-                           791
                                                         TP 13-00268

from his institutional record (see id.). Moreover, inasmuch as
petitioner has served that penalty and there was no recommended loss
of good time, there is no need to remit the matter to respondent for
further consideration of the penalty (see id.; Matter of Maybanks v
Goord, 306 AD2d 839, 840). Contrary to petitioner’s contention, the
determination that he violated inmate rule 109.12 is supported by
substantial evidence (see generally Matter of Foster v Coughlin, 76
NY2d 964, 966; People ex rel. Vega v Smith, 66 NY2d 130, 139).




Entered:   July 19, 2013                        Frances E. Cafarell
                                                Clerk of the Court
