Acevedo v. Hernandez

— Proceeding pursuant to CPLR article 78 to review a determination of the respondent Superintendent of the Taconic Correctional Facility, dated March 9, 1987, which, after a hearing, found the petitioner to be in violation of inmate rules 101.20 and 112.20, and imposed a penalty.

Adjudged that the petition is granted, the determination is annulled, without costs or disbursements, and the respondent is directed to expunge any reference to these charges from the petitioner’s institutional records.

The petitioner was charged with violation of inmate rule 101.20 which prohibits inmates from "intentionally exposing] the private parts of their bodies in a lewd manner.” It was further alleged that as a result of the petitioner’s behavior, the correction officer on duty had to delay the inmate count. Accordingly, the petitioner was also charged with violating inmate rule 112.20 which prohibits an inmate from delaying the inmate count.

Based upon a review of the hearing transcript, we conclude that the record is lacking in substantial evidence to sustain a finding that the petitioner "intentionally” exposed himself. At most, the record established that while the petitioner was laying on his bed reading a magazine, his cutoff shorts rode up on his leg thereby exposing his genitals. Absent any indication that the petitioner’s conduct was intentional, the charges against him cannot be sustained. Mollen, P. J., Mangano, Kunzeman and Weinstein, JJ., concur.