| Matter of Monroe v Fischer |
| 2011 NY Slip Op 06693 [87 AD3d 1300] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Frederick Monroe, Petitioner, v BrianFischer, Commissioner, New York State Department of Correctional Services,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of theSupreme Court in the Fourth Judicial Department by order of the Supreme Court, WyomingCounty [Mark H. Dadd, A.J.], entered March 11, 2011) 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 so appealed from is unanimously modified on thelaw and the petition is granted in part by annulling those parts of the determination finding thatpetitioner violated inmate rules 101.22 (7 NYCRR 270.2 [B] [2] [v]) and 107.10 (7 NYCRR270.2 [B] [8] [i]) and vacating the recommended loss of good time and as modified thedetermination is confirmed without costs, respondent is directed to expunge from petitioner'sinstitutional record all references to the violation of those rules, and the matter is remitted torespondent for further proceedings in accordance with the following memorandum: Petitionercommenced this CPLR article 78 proceeding seeking to annul the determination, following a tierIII hearing, that he violated inmate rules 101.22 (7 NYCRR 270.2 [B] [2] [v] [stalking]), 107.10(7 NYCRR 270.2 [B] [8] [i] [interference with an employee]), and 107.11 (7 NYCRR 270.2 [B][8] [ii] [harassment]). As respondent correctly concedes, the determination with respect to inmaterules 101.22 and 107.10 is not supported by substantial evidence (see generally People ex rel.Vega v Smith, 66 NY2d 130, 139 [1985]). We conclude, however, that there is substantialevidence to support the determination with respect to inmate rule 107.11. The misbehaviorreport, together with the hearing testimony of a nurse, constituted substantial evidence thatpetitioner violated that inmate rule by "communicating messages of a personal nature to anemployee" (7 NYCRR 270.2 [B] [8] [ii]; see Matter of Foster v Coughlin, 76 NY2d 964,966 [1990]; Vega, 66 NY2d at 139). We therefore modify the determination and grant thepetition in part by annulling those parts of the determination finding that petitioner violatedinmate rules 101.22 and 107.10, and we direct respondent to expunge from petitioner'sinstitutional record all references to the violation of those rules. Although there is no need toremit the matter to respondent for reconsideration of those parts of the penalty already served bypetitioner, we note that there was also a recommended loss of good time, and the record does notreflect the relationship between the violations and that recommendation. We therefore furthermodify the determination by vacating the recommended loss of good time, and we remit thematter to respondent for reconsideration of that recommendation (see Matter of Cross v Goord, 2 AD3d1425 [2003]). Present—Centra, J.P., Peradotto, Carni, Green and Gorski, JJ.