IN RE: William K. TROTTIE (1998)

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

 Petitioner, a prison inmate, was found guilty of conspiring to assault another inmate and threatening violent conduct after he wrote a letter to an individual and requested money in exchange for assaulting the inmate who had burglarized her home.¹  In the letter, which the individual promptly turned over to authorities, petitioner offered to get the inmate “f----- up pretty bad” and to “make his life a living hell”.   We find that the letter and petitioner's admission that he authored it provide substantial evidence to support the finding that petitioner threatened to engage in violent conduct.   With respect to the determination that petitioner conspired to assault the inmate, however, we reach a contrary conclusion.   The offense of conspiracy is defined as an agreement with one or more persons to engage in an act of misbehavior (see, 7 NYCRR 270.3[b][2] ) and the record is devoid of any evidence that petitioner and the individual agreed to commit the proposed assault.   In view of this finding, we remit the matter for redetermination of the appropriate penalty on the sustained charges.   Finally, petitioner's remaining contentions have been reviewed and found to be either unpreserved for our review or lacking in merit.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of conspiring to assault another inmate;  petition granted to that extent, respondents are directed to expunge all references thereto from petitioner's institutional record;  matter remitted to respondents for redetermination of the penalty imposed on the remaining violations;  and, as so modified, confirmed.

FOOTNOTES

1.   At his disciplinary hearing, petitioner pleaded guilty to violating two additional prison disciplinary rules.

MEMORANDUM DECISION.