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

IN RE: Wayne ROWE, Petitioner, v. Glenn GOORD, as Commissioner of the New York State Department of Correctional Services, Respondent.

Decided: January 28, 1999

Before:  CARDONA, P.J., MERCURE, PETERS, SPAIN and GRAFFEO, JJ. Wayne Rowe, Dannemora, petitioner in person. Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondent.

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 which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier III disciplinary hearing, petitioner, a prison inmate, was found guilty of violating prison disciplinary rules prohibiting assault on staff, refusing a direct order and possession of a weapon.   At the outset, we note that the Attorney-General concedes, and our review of the record confirms, that there is insufficient evidence to support that part of the determination finding petitioner guilty of assault on staff.   This charge must be annulled and expunged from petitioner's institutional record and the matter remitted to respondent for a redetermination of the penalty imposed (see, Matter of Dickerson v. Goord, 254 A.D.2d 645, 679 N.Y.S.2d 725;  Matter of Vargas v. Goord, 253 A.D.2d 947, 678 N.Y.S.2d 916).

Petitioner's remaining contentions, including his assertion that the hearing was untimely held, have been examined and found to be unpersuasive.   Contrary to petitioner's argument, the entire determination need not be annulled because of a minor and nonprejudicial 20-minute discrepancy between the times listed on the unusual incident and the misbehavior report which the author of the misbehavior report testified was a clerical error on his part (see, Matter of Alvarado v. Goord, 252 A.D.2d 650, 675 N.Y.S.2d 220).

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


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