Covington v. Coombe

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule which prohibits inmates from disobeying a direct order.^* Petitioner commenced this CPLR article 78 proceeding challenging the determination contending, inter alia, that the determination is not supported by substantial evidence.

We agree. In reaching the determination of guilt, the Hearing Officer relied solely on petitioner’s testimony. A review of petitioner’s testimony fails to establish that any direct order was given to him. Although the misbehavior report would have been sufficient to support the determination of guilt, an administrative determination cannot be confirmed upon grounds not invoked by the agency (see, Matter of Lopez v Coombe, 229 AD2d 639, n). Accordingly, given the lack of testimony that petitioner was issued a direct order, we are compelled to annul the determination. Given our conclusion, we need not address petitioner’s remaining contentions.

Mikoll, J. P., Crew III, Peters, Carpinello and Graffeo, JJ., concur. Adjudged that the determination is annulled, without costs, petition granted and respondents are directed to expunge all references to this matter from petitioner’s institutional record.

* Petitioner was found not guilty of creating a disturbance and interfering with an employee.