WATKINS v. COOMBE (1997)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Leonza WATKINS, Petitioner, v. Philip COOMBE, Jr., Acting Commissioner, New York State Department of Correctional Services, Respondent.

Decided: February 07, 1997

Before GREEN, J.P., and PINE, DOERR, BOEHM and FALLON, JJ.

Based upon a misbehavior report written by a correction officer, petitioner was charged with a violation of inmate rule 106.10 (7 NYCRR 270.2 [B][7][i]; Refusal To Follow a Direct Order) and inmate rule 109.12 (7 NYCRR 270.2[B][10][iii]; Inmate Movement). At his Tier II hearing, petitioner pleaded not guilty to both charges. The Hearing Officer found petitioner not guilty of a violation of inmate rule 109.12, but guilty of a violation of inmate rule 106.10. The Hearing Officer did not make an express finding that petitioner heard the order given but merely found that he should have heard it. “Absent a finding that petitioner heard the order, it could not be determined that he refused to obey it” (Matter of Midlarsky v. Kelly, 145 A.D.2d 992, 993, 536 N.Y.S.2d 358). The determination therefore must be annulled and all reference to the proceeding expunged from petitioner's institutional record (see, Matter of Varela v. Coughlin, 199 A.D.2d 1007, 1008, 606 N.Y.S.2d 109; Matter of Midlarsky v. Kelly, supra, at 993, 536 N.Y.S.2d 358).

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

MEMORANDUM.

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