Gibson v. Fischer , 947 N.Y.S.2d 867 ( 2012 )

Motion for reargument is granted and, upon reargument, the order entered April 20, 2012 (94 AD3d 1418) is amended by deleting the ordering paragraph and substituting the following ordering paragraph, “It is hereby ordered that the determination is unanimously modified on the law and the petition is granted in part by annulling those parts of the determination finding that petitioner violated inmate rules 102.10 (7 NYCRR 270.2 [b] [3] [i]) and 104.11 (7 NYCRR 270.2 [B] [5] [ii]) and vacating the recommended loss of good time and as modified the determination is confirmed without costs, respondent is directed to expunge from petitioner’s institutional record all references to the violation of those inmate rules, and the matter is remitted to respondent for further proceedings,” and by adding the following memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III hearing, that petitioner had violated various inmate rules, including inmate rules 102.10 (7 NYCRR 270.2 [B] [3] [i] [threats]) and 104.11 (7 NYCRR 270.2 [B] [5] [ii] [violent conduct]). As respondent correctly concedes, the determination with respect to those two inmate rules is not supported by substantial evidence (see generally People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]). We therefore modify the determination and grant the petition in part by annulling those parts of the determination finding that petitioner violated those two inmate rules, and we direct respondent to expunge from petitioner’s institutional record all references to the violation of those rules. Although we need not remit the matter to respondent for reconsideration of those parts of the penalty already served by petitioner, we note that there was also a recommended loss of good time, and the record does not reflect the relationship between the violations and that recommendation. 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. We have considered petitioner’s remaining contentions and conclude that they are without merit. Present — Smith, J.P., Lindley, Sconiers and Martoche, JJ.