| Matter of Fratello v Farrell |
| 2008 NY Slip Op 02722 [49 AD3d 1115] |
| March 27, 2008 |
| Appellate Division, Third Department |
| In the Matter of Frank Fratello, Petitioner, v J. Farrell, asSuperintendent of Wallkill Correctional Facility, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Lahtinen, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondent which foundpetitioner guilty of violating a prison disciplinary rule.
A search of petitioner's prison cell recovered an altered electrical wire, an AM/FM radio andan "off duty permit" card signed by a facility deacon allowing petitioner to possess the radio. Asa result, petitioner was charged in a misbehavior report with possession of contraband,unauthorized exchange and tampering with an electrical device. A tier II disciplinary hearingensued, during which the deacon testified that he signed the permit card authorizing petitioner touse the radio. Although the Hearing Officer noted that the deacon did not have the authority toissue permission for use of the radio, he nevertheless found petitioner not guilty of possession ofcontraband and unauthorized exchange. Petitioner was, however, found guilty of tampering withan electrical device. The determination was affirmed upon administrative appeal, promptingpetitioner to commence this CPLR article 78 proceeding.
We must annul the determination. The prison disciplinary rule that petitioner was [*2]found of violating states that "[a]n inmate shall not alter, rewire,tamper or attempt to repair electrical outlets or any electrical device" (7 NYCRR 270.2 [B] [19][ix]). A review of the hearing transcript fails to definitively indicate that the source or purpose ofthe electrical wire was ever established. Absent such proof, it cannot be concluded that petitioneractually tampered with an electrical outlet or device. Thus, the requisite substantial evidencesupporting the determination of guilt is lacking (see Matter of Garofolo v Cunningham, 34 AD3d 1071, 1073[2006]). Given our disposition, petitioner's contention that the misbehavior report was deficientis academic.
Mercure, J.P., Spain, Rose and Kavanagh, JJ., concur. Adjudged that the determination isannulled, without costs, petition granted and the Commissioner of Correctional Services isdirected to expunge all references to this matter from petitioner's institutional record.