IN RE: GABRIEL M. WILLIAMS

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Supreme Court, Appellate Division, Fourth Department.

IN RE: GABRIEL M. WILLIAMS, PETITIONER, v. ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT. GABRIEL M. WILLIAMS, PETITIONER

TP 15–00597

Decided: November 20, 2015

PRESENT:  SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

PRO SE.

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, Erie County [M. William Boller, A.J.], entered April 9, 2015) 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 101.22 is not supported by substantial evidence (see Matter of Monroe v. Fischer, 87 AD3d 1300, 1301), and we therefore modify the determination accordingly.  Inasmuch as the record establishes that petitioner has served his administrative penalty, we direct respondent to expunge from petitioner's institutional record all references to the violation of that inmate rule (see Matter of Stewart v. Fischer, 109 AD3d 1122, 1123, lv denied 22 NY3d 858).  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 the Hearing Officer also recommended nine months' loss of good time, and the record does not reflect the relationship between the violations and that recommendation (see Monroe, 87 AD3d at 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 in light of our decision with respect to inmate rule 101.22 (see id.).

We have reviewed petitioner's remaining contentions and conclude that none warrants reversal or further modification.

Frances E. Cafarell

Clerk of the Court