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

167
TP 12-01564
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF CRAIG SINGLETARY, 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 (LEAH R. NOWOTARSKI OF
COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. ARNOLD 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 August 21, 2012) 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 is unanimously
annulled on the law without costs, the second amended petition is
granted, the penalty is vacated, and respondent is directed to expunge
from petitioner’s institutional record all references to the violation
of inmate rules 113.25 (7 NYCRR 270.2 [B] [14] [xv]), 114.10 (7 NYCRR
270.2 [B] [15] [i]), 180.10 (7 NYCRR 270.2 [B] [26] [i]) and 180.11 (7
NYCRR 270.2 [B] [26] [ii]).

     Memorandum: In this CPLR article 78 proceeding, petitioner seeks
review of a Tier III hearing determination finding him guilty of
violating various inmate rules arising from allegations that he
conspired to have his girlfriend smuggle marihuana to him during a
prison visit. The only evidence at the disciplinary hearing of such a
conspiracy was correspondence between defendant and his girlfriend,
who did not in fact smuggle drugs into prison or even attempt to do
so. We agree with petitioner that the determination must be annulled
because respondent violated 7 NYCRR 720.4, which governs the opening
of incoming correspondence.

     Pursuant to 7 NYCRR 720.4 (f) (2), the prison superintendent must
request documentation from the person seeking authority to open
incoming mail so as “to determine that there are sufficient grounds
for reading the mail, that the reasons for reading the mail are
                                 -2-                           167
                                                         TP 12-01564

related to the legitimate interests of safety, security, and order,
and that the reading is no more extensive than is necessary to further
th[o]se interests.” Here, the evidence presented at the hearing did
not establish that the superintendent complied with the above mandate
before authorizing the opening of petitioner’s mail. Because evidence
that was admitted at the hearing was seized in contravention of
respondent’s rules and regulations, the Hearing Officer’s
determination based on that evidence “must be annulled and all
references thereto expunged from petitioner’s file” (Matter of Chavis
v Goord, 265 AD2d 798, 799; see Matter of Knight v Goord, 255 AD2d
930, 931).




Entered:   March 22, 2013                      Frances E. Cafarell
                                               Clerk of the Court
