Gourdine v. Leclaire

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Mark H. Dadd, A.J.], entered February 7, 2007) to 960 review a determination of respondent. The determination found after a tier III hearing that petitioner violated various inmate rules. It is hereby ordered that the determination be and the same hereby is unanimously modified on the law and the petition is granted in part by annulling that part of the determination finding that petitioner violated inmate rule 114.10 (7 NYCRR 270.2 [B] [15] [i]) and as modified the determination is confirmed without costs, and respondent is directed to expunge from petitioner’s institutional record all references to the violation of that rule. Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination that he violated various inmate rules. As respondent correctly concedes, the determination finding that petitioner violated inmate rule 114.10 (7 NYCRR 270.2 [B] [15] [i] [smuggling]) is not supported by substantial evidence. We therefore modify the determination and grant the petition in part by annulling that part of the determination finding that petitioner violated that rule (see Matter of Vasquez v Goord, 284 AD2d 903 [2001]). Because it appears from the record that petitioner has already served his administrative penalty, the appropriate remedy with respect to that violation is expungement (see Matter of Stacchini v Filion, 306 AD2d 914 [2003]). Thus, we direct respondent to expunge from petitioner’s institutional record all references to the violation of that rule. The determination with respect to the remaining inmate rules is supported by substantial evidence (see generally People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]). Present—Martoche, J.E, Smith, Centra, Peradotto and Pine, JJ.