GOURDINE v. GOORD (2007)

Petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul the determination finding that he violated inmate rules 104.11 (7 NYCRR 270.2[B][5][ii] [engaging in violent conduct] ), 113.10 (7 NYCRR 270.2[B][14][i] [possessing a weapon] ) and 118.23 (7 NYCRR 270.2[B] [19][v] [not promptly reporting an injury] ).   As respondent correctly concedes, that part of the determination finding that petitioner violated inmate rule 104.11 is not 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).   We therefore modify the determination and grant the petition in part by annulling that part of the determination finding that petitioner violated that rule, and we direct respondent to expunge from petitioner's institutional record all references to the violation of that rule inasmuch as it appears from the record that petitioner has already served his administrative penalty (see Matter of Vasquez v. Goord, 284 A.D.2d 903, 725 N.Y.S.2d 921;  see also Matter of Redmond v. Goord, 6 A.D.3d 1207, 1208, 775 N.Y.S.2d 715).

We reject the contention of petitioner, however, that the determination finding that he violated inmate rules 113.10 and 118.23 is not supported by substantial evidence.   The determination with respect to those rules is supported by the misbehavior report, the injury report, the testimony of the correction officer who searched petitioner's cell and a photocopy of the weapon found in petitioner's cell (see generally Vega, 66 N.Y.2d at 139, 495 N.Y.S.2d 332, 485 N.E.2d 997).  “The record does not support petitioner's contention that the Hearing Officer was biased or that the determination flowed from the alleged bias” (Matter of Rodriguez v. Herbert, 270 A.D.2d 889, 890, 706 N.Y.S.2d 284).

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 104.11 (7 NYCRR 270.2[B][5][ii] ) 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: