Washington v. Selsky , 850 N.Y.S.2d 720 ( 2008 )

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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Following an incident in which petitioner asked a female correction officer to accompany him to an office where he gave her a religious book, he was charged in a misbehavior report with solicitation, stalking and harassment. Following a tier III disciplinary hearing, he was found guilty of the charge of harassment and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

Upon reviewing this record, we do not find that substantial evidence supports the determination at issue. The female officer admitted that she had had conversations with petitioner in the past concerning religion, and petitioner testified that, based upon these conversations, he decided to give her the book as a gift. Although the officer testified that petitioner exhibited an “eerie” smile which she found “very unnerving,” she did not indicate that he engaged in any inappropriate or disrespectful behavior and she confirmed that he had always addressed her professionally in the past. Petitioner’s conduct appears to have been a continuation of a cordial relationship between the officer and petitioner.

Under these circumstances, we cannot conclude that it rose to the level of harassment as contemplated by 7 NYCRR 270.2 (B) (8) (ii) (see e.g. Matter of Costantino v Goord, 38 AD3d 659, 660 [2007]; Matter of Royster v Goord, 26 AD3d 503, 504 [2006]; compare Matter of Richards v Kuhlmann, 251 AD2d 939, 939-940 [1998]). Accordingly, the determination must be annulled. Given our disposition, we need not address petitioner’s remaining claims.

Cardona, RJ., Peters, Spain, Kane and Malone Jr., JJ, concur. 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.