                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 21, 2016                     521034
________________________________

In the Matter of JASON RAMOS,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   June 6, 2016

Before:   Lahtinen, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

                             __________


      Donna H. Lee, Main Street Legal Services, Long Island City,
for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Martin A.
Hotvet 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 finding petitioner guilty of
violating certain prison disciplinary rules.

      Petitioner was charged in a misbehavior report with
possessing gang-related material, conspiring to possess weapons,
conspiring to possess tobacco in the special housing unit,
smuggling, conspiring to introduce narcotics into the facility
and violating facility correspondence procedures. Following a
tier III disciplinary rehearing, petitioner was found guilty of
all charges except the tobacco charge, and a penalty was imposed.
The determination of guilt – based in large measure upon
correspondence that was intercepted by correction officials – was
                               -2-                  521034

affirmed upon administrative review, and this CPLR article 78
proceeding ensued.

      Petitioner argues that his mail was opened in violation of
established mail watch procedures. Specifically, petitioner
contends that the "express written authorization" that permitted
facility personnel to open, inspect or read his outgoing
correspondence (7 NYCRR 720.3 [3] [e]) failed to "set forth the
specific facts forming the basis for the action" (7 NYCRR 720.3
[e] [1]) and, as such, the subject authorization was invalid.1
Upon reviewing the document at issue, we agree. Accordingly, the
determination of guilt must be annulled (see Matter of Mena v
Fischer, 115 AD3d 1039, 1039 [2014]; compare Matter of Santana v
Fischer, 78 AD3d 1364, 1364 [2013]). In light of this
conclusion, we need not address the remaining arguments raised by
petitioner.

      Lahtinen, J.P., Egan Jr., Lynch, Clark and Aarons, 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
and to restore any loss of good time.




                              ENTER:




                              Robert D. Mayberger
                              Clerk of the Court



     1
        Similar provisions govern the reading of incoming
correspondence (see 7 NYCRR 720.4 [e], [f]).
