                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 24, 2014                     517114
________________________________

In the Matter of DERRICK OMARO,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

BRIAN FISCHER, as Commissioner
   of Corrections and Community
   Supervision,
                    Respondent.
________________________________


Calendar Date:   June 9, 2014

Before:   Peters, P.J., Stein, McCarthy, Devine and Clark, JJ.

                             __________


     Derrick Omaro, Attica, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff 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 a prison disciplinary rule.

      Petitioner, a prison inmate, was found guilty of making an
unauthorized exchange of personal property when an anti-bullying
manual he wrote was found in another inmate's cell. The
correction officer who authored the report noted that petitioner
had been instructed not to disseminate the manual, but did not
discover whether petitioner had actually given the manual to the
other inmate. Petitioner testified that he had not done so, and
the record reflects that the manual is available to the general
public and could have been obtained from other sources. The
Hearing Officer then stated that he had learned off the record
                              -2-                  517114

that petitioner had given the manual to another inmate, and
relied upon petitioner's supposed "admission" as the basis for
the determination of guilt. Even assuming that it was proper for
the Hearing Officer to rely on the off-the-record alleged
admission, that evidence did not establish whether the inmate who
received the manual was the same inmate whose possession of the
manual formed the basis for the misbehavior report (compare
Matter of Harrison v Bertone, 51 AD3d 1350, 1350 [2008]).
Therefore, substantial evidence does not exist to support
petitioner's guilt of the charge alleged in the misbehavior
report, and the determination must be annulled (see Matter of
Campbell v Prack, 100 AD3d 1173, 1173 [2012]).

      Petitioner's remaining contentions, including that the off-
the-record alleged admission was improper to consider, are
rendered academic by the foregoing.

      Peters, P.J., Stein, McCarthy, Devine and Clark, JJ.,
concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
