MORRERO v. COOMBE (1997)

Respondent's determination that petitioner possessed unauthorized organizational materials or insignias in violation of 7 NYCRR 270.2(B)(6)(iii) is not supported by substantial evidence.   The record establishes that the alleged unauthorized materials were three photographs of petitioner and other individuals.   The photographs had been reviewed by correction officers at Wyoming Correctional Facility and were never deemed contraband.   Indeed, they were packed by personnel at the Wyoming Correctional Facility and shipped as petitioner's property to Attica Correctional Facility, where upon arrival they were seized by Attica correction officers as contraband.   Under those unique circumstances, we conclude that respondent's determination that the photographs constitute unauthorized organizational materials must be annulled.   Thus, the determination must be annulled and all reference to the proceeding expunged from petitioner's institutional record (see generally, Matter of Varela v. Coughlin, 199 A.D.2d 1007, 1008, 606 N.Y.S.2d 109;  Matter of Parker v. Kelly, 140 A.D.2d 993, 529 N.Y.S.2d 662).

Determination unanimously annulled on the law without costs and petition granted.

MEMORANDUM DECISION.