WHITT v. GOORD

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Alvin WHITT, Petitioner, v. Glenn S. GOORD, Commissioner, New York State Department of Correctional Services, Respondent.

Decided: March 31, 1999

Present:  DENMAN, P.J., GREEN, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. Susan K. Jones, Wyoming County-Attica Legal Aid Bureau, Attica, for petitioner. Wayne Benjamin, Attorney General's Office, Albany, for respondent.

 The determination that petitioner violated inmate rule 116.11 (7 NYCRR 270.2[B][17][ii] [tampering with personal property without authorization] ) is supported by substantial evidence (see, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997).   The misbehavior report specifies that the security tape was broken on the television in petitioner's cell.   The testimony of petitioner that the tape was perfect when he received the television a month before and that he did not break the tape presented an issue of credibility for the Hearing Officer to resolve (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477).

 Respondent concedes that the determination that petitioner violated inmate rule 113.23 (7 NYCRR 270.2[B][14][xiv] ) is not supported by substantial evidence.   Consequently, we modify the determination and grant in part the petition by annulling the determination that petitioner violated inmate rule 113.23.   Because one penalty was imposed and the record fails to specify any relation between the violations and the penalty, we further modify the determination by vacating the penalty, and we remit the matter to respondent for imposition of an appropriate penalty on the remaining violation (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: