IN RE: JOSHUA LINER (2012)

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Mark H. Dadd, A.J.], entered January 27, 2012) to review a determination of respondent.   The determination found after a Tier III hearing that petitioner had violated various inmate rules.

As respondent correctly concedes, however, the determination with respect to inmate rule 180.17 is not supported by substantial evidence (see generally Vega, 66 N.Y.2d at 139).   We therefore modify the determination and grant the petition in part by annulling those parts of the determination finding that petitioner violated inmate rule 180.17, and we direct respondent to expunge from petitioner's institutional record all references to the violations of that rule.  “Although there is no need to remit the matter to respondent for reconsideration of those parts of the penalty already served by petitioner, we note that there was also a recommended loss of good time, and the record does not reflect the relationship between the violations and that recommendation” (Matter of Monroe v. Fischer, 87 AD3d 1300, 1301).   We therefore further modify the determination by vacating the recommended loss of good time, and we remit the matter to respondent for reconsideration of that recommendation.

Frances E. Cafarell

Clerk of the Court