| Matter of Washington v Selsky |
| 2008 NY Slip Op 01267 [48 AD3d 864] |
| February 14, 2008 |
| Appellate Division, Third Department |
| In the Matter of Anthony Washington, Petitioner, v Donald Selsky,as Director of Special Housing and Inmate Disciplinary Programs, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating a prison disciplinary rule.
Following an incident in which petitioner asked a female correction officer to accompanyhim to an office where he gave her a religious book, he was charged in a misbehavior report withsolicitation, stalking and harassment. Following a tier III disciplinary hearing, he was foundguilty of the charge of harassment and the determination was later affirmed on administrativeappeal. This CPLR article 78 proceeding ensued.
Upon reviewing this record, we do not find that substantial evidence supports thedetermination at issue. The female officer admitted that she had had conversations with petitionerin the past concerning religion, and petitioner testified that, based upon these conversations, hedecided to give her the book as a gift. Although the officer testified that petitioner exhibited an"eerie" smile which she found "very unnerving," she did not indicate that he engaged in anyinappropriate or disrespectful behavior and she confirmed that he had always addressed herprofessionally in the past. Petitioner's conduct appears to have been a continuation of a cordialrelationship between the officer and petitioner.[*2]
Under these circumstances, we cannot conclude that itrose to the level of harassment as contemplated by 7 NYCRR 270.2 (B) (8) (ii) (see e.g. Matter of Costantino v Goord,38 AD3d 659, 660 [2007]; Matterof Royster v Goord, 26 AD3d 503, 504 [2006]; compare Matter of Richards vKuhlmann, 251 AD2d 939, 939-940 [1998]). Accordingly, the determination must beannulled. Given our disposition, we need not address petitioner's remaining claims.
Cardona, P.J., Peters, Spain, Kane and Malone Jr., JJ., concur. Adjudged that thedetermination is annulled, without costs, petition granted and the Commissioner of CorrectionalServices is directed to expunge all references to this matter from petitioner's institutional record.