DAVIS v. COOMBE (1997)

 The inmate misbehavior report lodged against petitioner states that a 13-inch metal rod was found hidden in a window sill while petitioner's belongings were being packed by a correction officer.   The hearing testimony establishes that petitioner resided in a “cube” in an open dorm area.   The record is devoid of any evidence that petitioner had control over the window or had any connection to the rod.   Therefore, we conclude that there is insufficient evidence to support the finding that petitioner possessed the rod (see, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997;  Matter of Sanchez v. Coughlin, 132 A.D.2d 896, 898, 518 N.Y.S.2d 456;  Matter of Trudo v. LeFevre, 122 A.D.2d 319, 504 N.Y.S.2d 68).   Thus, we modify the determination by annulling the finding that petitioner possessed a weapon.   Because the record imposes one penalty and fails to specify any relation between the violations and the penalty imposed, the penalty is vacated, and the matter is remitted to respondent for imposition of an appropriate penalty on the charge sustained (see, Matter of Brooks v. Coughlin, 182 A.D.2d 1115, 1116, 583 N.Y.S.2d 91).

We have reviewed the remaining contentions raised in this proceeding and conclude that they are without merit.

Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent.

MEMORANDUM: