IN RE: Clarence GOURDINE (2007)

Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination that he violated various inmate rules.   As respondent correctly concedes, the determination finding that petitioner violated inmate rule 114.10 (7 NYCRR 270.2[B][15][i] [smuggling] ) is not supported by substantial evidence.   We therefore modify the determination and grant the petition in part by annulling that part of the determination finding that petitioner violated that rule (see Matter of Vasquez v. Goord, 284 A.D.2d 903, 725 N.Y.S.2d 921).   Because it appears from the record that petitioner has already served his administrative penalty, the appropriate remedy with respect to that violation is expungement (see Matter of Stacchini v. Filion, 306 A.D.2d 914, 761 N.Y.S.2d 911).   Thus, we direct respondent to expunge from petitioner's institutional record all references to the violation of that rule.   The determination with respect to the remaining inmate rules is supported by substantial evidence (see generally People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997).

It is hereby ORDERED that the determination be and the same hereby is unanimously modified on the law and the petition is granted in part by annulling that part of the determination finding that petitioner violated inmate rule 114.10 (7 NYCRR 270.2[B][15][i] ) and as modified the determination is confirmed without costs, and respondent is directed to expunge from petitioner's institutional record all references to the violation of that rule.

MEMORANDUM: