IN RE: Carl JACKSON (2008)

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging a tier II disciplinary determination finding him guilty of disobeying a direct order.   Having reviewed the record, we must annul.

The misbehavior report, as amplified by the hearing testimony, reveals that the conduct underlying the charge was petitioner's failure to respond to the industry superintendent when he twice asked petitioner why he was standing by the vocational gate.   Given that the superintendent merely asked petitioner a question and never actually gave him any directive, we cannot conclude that substantial evidence supports the finding that petitioner disobeyed a direct order (see 7 NYCRR 270.2[B][7][i];  see also Matter of Cliff v. Vaughn, 275 A.D.2d 871, 871-872, 713 N.Y.S.2d 374 [2000];  Matter of Covington v. Coombe, 262 A.D.2d 675, 676, 692 N.Y.S.2d 482 [1999] ).   Our disposition herein has rendered petitioner's remaining contentions academic.

ADJUDGED that the determination is annulled, without costs, petition granted and the Commissioner of Correctional Services is directed to expunge all references to this matter from petitioner's institutional record.