ABDUR RAHEEM v. GOORD (1997)

 The detailed misbehavior report and the testimony of petitioner at the Tier III hearing constitute substantial evidence to support the determination that petitioner violated inmate rules 102.10 and 113.23 (7 NYCRR 270.2[B][3][i];  [14][xiv];  see, Matter of Bryant v. Coughlin, 77 N.Y.2d 642, 647, 569 N.Y.S.2d 582, 572 N.E.2d 23;  Matter of Perez v. Wilmot, 67 N.Y.2d 615, 616, 499 N.Y.S.2d 659, 490 N.E.2d 526;  People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997).

 The determination that petitioner violated inmate rule 104.12, however, is not supported by substantial evidence.   That rule provides that “[i]nmates shall not lead, organize, participate, or urge other inmates to participate, in * * * actions which may be detrimental to the order of the facility” (7 NYCRR 270.2[B][5][iii] ).   The Hearing Officer based the finding of guilt upon petitioner's possession of notes prepared by petitioner for a lecture he intended to give to Muslim inmates.   Although the notes contain threatening references, there is no evidence in the record that petitioner gave the lecture.   In order to violate inmate rule 104.12, the inmate must “lead, organize, participate, or urge other inmates to participate * * * in actions”, and not merely intend to do so (7 NYCRR 270.2[B][5][iii];  see, e.g., Matter of Watts v. Coombe, 235 A.D.2d 952, 653 N.Y.S.2d 406;  Matter of Tremblay v. Leonardo, 178 A.D.2d 790, 577 N.Y.S.2d 523;  Matter of Collins v. Coughlin, 156 A.D.2d 793, 549 N.Y.S.2d 213, lv. denied 75 N.Y.2d 707, 554 N.Y.S.2d 833, 553 N.E.2d 1343;  Matter of Hendricks v. Kelly, 125 A.D.2d 946, 510 N.Y.S.2d 40, lv. denied 69 N.Y.2d 609, 516 N.Y.S.2d 1025, 509 N.E.2d 360).

We therefore modify by annulling so much of the determination finding petitioner guilty of violating inmate rule 104.12 and directing that all entries in petitioner's records relating thereto be expunged.   Because the penalty was imposed without relation to the particular violations, the penalty is vacated and the matter is remitted to respondent for imposition of an appropriate penalty on the remaining violations (see, Matter of Brooks v. Coughlin, 182 A.D.2d 1115, 1116, 583 N.Y.S.2d 91).

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

MEMORANDUM: