Secore v. Goord , 666 N.Y.S.2d 530 ( 1997 )

—Determination unanimously annulled on the law without costs and petition granted. Memorandum: This CPLR article 78 proceeding was transferred to this Court pursuant to CPLR 7804 (g) to review the determination of respondent, made following a Tier II disciplinary hearing, finding petitioner guilty of violating inmate rule 114.10 (7 NYCRR 270.2 [B] [15] [i] [smuggling]). The misbehavior report had also charged petitioner with violating inmate rule 113.23 (7 NYCRR 270.2 [B] [14] [xiv] [possession of contraband]) based upon a correction officer having found three cigarettes in petitioner’s sock while petitioner was on his way to the prison law library. That charge was dismissed by the Hearing Officer. Petitioner contends that, if the cigarettes that he possessed were not contraband items, then he could not be found guilty of smuggling those cigarettes. We agree. Therefore, respondent’s determination that petitioner was guilty of smuggling is not supported by substantial evidence (see generally, People ex rel. Vega v Smith, 66 NY2d 130, 139). That determination is annulled and all reference to the incident should be expunged from petitioner’s institutional file (see, Matter of Parker v Kelly, 140 AD2d 993). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present—Green, J. P., Lawton, Wisner, Callahan and Boehm, JJ.