Davis v. Coombe

—Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: The inmate misbehavior report lodged against petitioner states that a 13-inch metal rod was found 892 hidden in a window sill while petitioner’s belongings were being packed by a correction officer. The hearing testimony establishes that petitioner resided in a "cube” in an open dorm area. The record is devoid of any evidence that petitioner had control over the window or had any connection to the rod. Therefore, we conclude that there is insufficient evidence to support the finding that petitioner possessed the rod (see, People ex rel. Vega v Smith, 66 NY2d 130, 139; Matter of Sanchez v Coughlin, 132 AD2d 896, 898; Matter of Trudo v LeFevre, 122 AD2d 319). Thus, we modify the determination by annulling the finding that petitioner possessed a weapon. Because the record imposes one penalty and fails to specify any relation between the violations and the penalty imposed, the penalty is vacated, and the matter is remitted to respondent for imposition of an appropriate penalty on the charge sustained (see, Matter of Brooks v Coughlin, 182 AD2d 1115, 1116). We have reviewed the remaining contentions raised in this proceeding and conclude that they are without merit. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present—Green, J. P., Lawton, Doerr, Balio and Fallon, JJ.