                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 6, 2014                   517991
________________________________

In the Matter of WAYNE GARDINE,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
   et al.,
                    Respondents.
________________________________


Calendar Date:   September 16, 2014

Before:   Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.

                             __________


     Wayne Gardine, Elmira, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondents.

                             __________


      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 Acting Commissioner of
Corrections and Community Supervision which found petitioner
guilty of violating certain prison disciplinary rules.

      Petitioner, a prison inmate, was charged in a misbehavior
report with a urinalysis testing violation and refusing a direct
order as a result of an incident that occurred on February 23,
2013. Several hours later, petitioner defecated in his hands and
was charged in a second misbehavior report with refusing a direct
order and committing an unhygienic act. He was found guilty as
charged following a combined tier III disciplinary hearing, and
that determination was upheld on administrative appeal. This
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CPLR article 78 proceeding ensued.

      Initially, we conclude, as respondents concede, that
substantial evidence does not support the determination of guilt
with respect to the first misbehavior report. Thus, it must be
annulled.

      Turning to the second misbehavior report, after carefully
reviewing petitioner's submissions to this Court, we reject
respondents' assertion that petitioner abandoned his challenge to
the determination of guilt as to the charges contained therein
(see Matter of Hinton v Fischer, 108 AD3d 1000, 1001 [2013]). We
also conclude that substantial evidence does not support such
determination.1 According to the allegations in the second
misbehavior report, petitioner told the correction officer that
he needed to defecate and the officer stated that the area
sergeant would be notified. When petitioner informed the officer
that he could not wait any longer, the officer "ordered him to
wait until the area [sergeant] arrived," and petitioner proceeded
to defecate in his hand. The misbehavior report itself noted
petitioner's professed physical inability to refrain from
defecating, and the record is bereft of any allegation or proof
that petitioner did so purposefully. Under these particular
circumstances, we conclude that the determination finding
petitioner guilty of the charges in the second misbehavior report
is not supported by substantial evidence and must also be
annulled (see Matter of Fulton v Chase, 115 AD3d 1033, 1034
[2014]; compare Matter of Lopez v Fischer, 115 AD3d 1098, 1099
[2014]).

      Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.,
concur.



    1
        In lieu of a brief, respondents submitted to this Court a
letter in which they limited their arguments regarding the second
misbehavior report to the question of whether petitioner has
abandoned his claims and did not address whether the finding of
guilt as to that misbehavior report was supported by substantial
evidence.
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      ADJUDGED that the determination is annulled, without costs,
petition granted, and respondent Acting Commissioner of
Corrections and Community Supervision is directed to expunge all
references to these charges from petitioner's institutional
record.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
