IN RE: Santiago RAMIREZ (2004)

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Susan I. Schultz, Superintendent of the Mid-Orange Correctional Facility, dated July 31, 2003, which affirmed the determination of a Hearing Officer, made after a Tier II disciplinary hearing, finding that the petitioner was guilty of violating certain prison disciplinary rules and imposing a penalty.

ADJUDGED that the petition is granted, on the law, with costs, the determination is annulled, the penalties and surcharge are vacated, and the respondent is directed to expunge from the petitioner's institutional record all references to the charges underlying the determination.

The petitioner, an inmate at Mid-Orange Correctional Facility, was found guilty of violating disciplinary rules proscribing destruction of state property (see 7 NYCRR 270.2[17][i] ), interference with an employee (see 7 NYCRR 270.2[8][i] ), and creating a disturbance (see 7 NYCRR 270.2[5] [iv] ).   These charges were based upon an incident that occurred when the petitioner, as a representative of an inmate committee, attempted to negotiate with a prison official over the committee's involvement in planning and staffing an upcoming family-day picnic.   When the petitioner was unable to obtain the terms desired by the committee, he tore up a paper requisition form rescinding the committee's voluntary monetary donation to the event.   He then placed the torn form in a trash receptacle and left the official's office.

 The respondent concedes that the petitioner's guilt of the charge of creating a disturbance was not established by substantial evidence (see Matter of Whitfield v. Fischer, 291 A.D.2d 504, 739 N.Y.S.2d 720).   This concession is well-founded as the uncontroverted hearing testimony demonstrated that the petitioner remained in control of his voice and behavior during the incident.   In addition, the respondent's contention that the petitioner interfered with a prison employee is not supported by substantial evidence.   There was no physical contact between the petitioner and any employee (cf. Matter of Otero v. Selsky, 9 A.D.3d 631, 779 N.Y.S.2d 648;  Matter of Porter v. Goord, 7 A.D.3d 847, 776 N.Y.S.2d 355;  Matter of Correa v. Goord, 298 A.D.2d 730, 749 N.Y.S.2d 294;  Matter of Giles v. Selsky, 287 A.D.2d 829, 731 N.Y.S.2d 532;  Matter of Wai Ng v. Goord, 285 A.D.2d 791, 729 N.Y.S.2d 797;  Matter of Cornwall v. Goord, 284 A.D.2d 763, 725 N.Y.S.2d 765), nor did the petitioner engage in any improper behavior that caused the involved employee to respond in a manner that interfered with his duties (cf. Matter of Goncalves v. Donnelly, 9 A.D.3d 721, 779 N.Y.S.2d 842;  Matter of Ragin v. Goord, 1 A.D.3d 842, 767 N.Y.S.2d 298;  Matter of Young v. Bennett, 1 A.D.3d 846, 767 N.Y.S.2d 287;  Matter of Montcrieft v. Goord, 308 A.D.2d 648, 764 N.Y.S.2d 296;  Matter of Anderson v. Ricks, 306 A.D.2d 715, 760 N.Y.S.2d 699;  Matter of Johnson v. Goord, 300 A.D.2d 785, 750 N.Y.S.2d 799;  Matter of Bennett v. Bintz, 290 A.D.2d 791, 736 N.Y.S.2d 495;   Matter of Lynch v. Goord, 285 A.D.2d 878, 727 N.Y.S.2d 805;  Matter of Burr v. Goord, 276 A.D.2d 947, 715 N.Y.S.2d 921, lv. denied 96 N.Y.2d 701, 722 N.Y.S.2d 793, 745 N.E.2d 1015, cert. denied 532 U.S. 935, 121 S.Ct. 1388, 149 L.Ed.2d 312;  Matter of Izquierdo v. Goord, 275 A.D.2d 494, 711 N.Y.S.2d 874). The record is devoid of any proof of interference.

 Finally, although the petitioner did tear up the requisition form memorializing his committee's donation, the record demonstrates that the petitioner was acting on the authority of his committee to withdraw its voluntary donation, and that the form upon which it had been written was of no further use.   Under the circumstances, the tearing up of this useless paper, followed by the petitioner depositing it in a trash can, is not equivalent to the destruction of valuable state property as proscribed by 7 NYCRR 270.2[17] [i] (cf. Matter of Mathieu v. Giambruno, 9 A.D.3d 632, 779 N.Y.S.2d 659, lv. denied 3 N.Y.3d 609, 786 N.Y.S.2d 812, 820 N.E.2d 291 [2004];  Matter of Brown v. Selsky, 5 A.D.3d 905, 772 N.Y.S.2d 757;  Matter of Gantt v. Girdich, 1 A.D.3d 668, 766 N.Y.S.2d 615;  Matter of Marcus v. Goord, 287 A.D.2d 906, 731 N.Y.S.2d 559;  Matter of Tam v. Goord, 284 A.D.2d 694, 728 N.Y.S.2d 519;  Matter of Navarro v. Selsky, 249 A.D.2d 654, 671 N.Y.S.2d 183).   The respondent's determination to the contrary was arbitrary and capricious, and unsupported by substantial evidence (see Matter of Whitfield v. Fischer, supra ).

The petitioner's remaining contentions are academic.