Vanier v. Goord

—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 respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner challenges a determination finding him guilty of violating a facility correspondence procedure and refusing a direct order. Initially, the Attorney General concedes, and based on our review of the record we agree, that there is insufficient evidence to support the charge of refusing a direct order. Accordingly, this charge must be annulled and expunged from petitioner’s institutional record and, inasmuch as the penalty imposed included a loss of good time, the matter must be remitted to respondents for a redetermination of the penalty imposed (see, Matter of Hall v Goord, 274 AD2d 722). Turning to the remaining charge, we note that petitioner pleaded guilty to violating a facility correspondence procedure and, as such, he is precluded from challenging the sufficiency of the evidence supporting the determination of guilt in connection therewith (see, Matter of Rollerson v Selsky, 281 AD2d 735). Petitioner’s remaining claims are unpreserved for review (see, Matter of Kross v Goord, 278 AD2d 637) and, in any event, are lacking in merit. Crew III, J. P., Peters, Spain, Mugglin and Lahtinen, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of the charge of refusing a direct order; petition granted to that extent, respondents are directed to expunge all references thereto from petitioner’s institutional record and matter remit 599 ted to respondents for redetermination of the penalty imposed on the remaining violation; and, as so modified, confirmed.