SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

764 

TP 14-02148 

PRESENT: SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, AND DEJOSEPH, JJ. 

 

IN THE MATTER OF JAWWAD ABDUL-HALIM, PETITIONER, 

V MEMORANDUM AND ORDER

ANTHONY J. ANNUCCI, ACTING COMMISSIONER, NEW YORK 

STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY 

SUPERVISION AND MICHAEL SHEAHAN, SUPERINTENDENT, 

FIVE POINTS CORRECTIONAL FACILITY, RESPONDENTS. 

 

JAWWAD ABDUL-HALIM, PETITIONER PRO SE. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF

COUNSEL), FOR RESPONDENTS. 

 

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, Seneca County [Dennis F.

Bender, A.J.], entered November 26, 2014) to review a determination,

after a tier III hearing, that petitioner had violated various inmate

rules. 

It is hereby ORDERED that the determination so appealed from is

unanimously modified on the law and the petition is granted in part by

annulling those parts of the determination finding that petitioner

violated rules 100.10 (7 NYCRR 270.2 [B] [1] [i]) and 107.20 (7 NYCRR

270.2 [B] [8] [iii]) and vacating the recommended loss of good time,

and as modified the determination is confirmed without costs,

respondents are directed to expunge from petitioner’s institutional

record all references to the violation of those rules, and the matter

is remitted to respondents for further proceedings in accordance with

the following memorandum: Petitioner commenced this proceeding

pursuant to CPLR article 78 seeking review of a determination

following a tier III disciplinary hearing that he violated the

following disciplinary rules: 104.11 (7 NYCRR 270.2 [B] [5] [ii]

[violent conduct]); 100.10 (7 NYCRR 270.2 [B] [1] [i] [assault on

inmate]); 103.20 (7 NYCRR 270.2 [B] [4] [ii] [soliciting]); 113.25 (7

NYCRR 270.2 [B] [14] [xv] [drug possession]); 113.30 (7 NYCRR 270.2

[B] [14] [xx] [possession of unauthorized UCC materials]); 114.10 (7

NYCRR 270.2 [B] [15] [i] [smuggling]); 107.20 (7 NYCRR 270.2 [B] [8]

[iii] [false statements or information]); 105.13 (7 NYCRR 270.2 [B]

[6] [iv] [gangs]); 102.10 (7 NYCRR 270.2 [B] [3] [i] [threats]);

180.10 (7 NYCRR 270.2 [B] [26] [i] [facility visitation violation]);

and 180.11 (7 NYCRR 270.2 [B] [26] [ii] [facility correspondence

violation]). Supreme Court transferred the matter to this Court
-2- 764 

TP 14-02148 

pursuant to CPLR 7804 (g).

Respondents correctly concede that the alleged violations of

disciplinary rules 100.10, i.e., assault on inmate, and 107.20, i.e.,

false statements, are not supported by substantial evidence (see

generally People ex rel. Vega v Smith, 66 NY2d 130, 139), and we

therefore modify the determination accordingly. Inasmuch as the

hearing officer recommended six months’ loss of good time, and as the

record does not reflect the relationship between those violations and

the recommendation, we further modify the determination by vacating

the recommended loss of good time, and we remit the matter for

reconsideration of that recommendation (see Matter of Holmes v

Fischer, 114 AD3d 1158, 1159). Because the other penalties have been

served, we need not remit the matter with respect to those penalties

(see id.). 

We reject petitioner’s contention that the remaining violations

are not supported by substantial evidence (see generally Vega, 66 NY2d

at 139). Those violations were supported by, inter alia, the

misbehavior report, the testimony of the reporting officer and another

employee, and documentary evidence, including several letters mailed

by petitioner arranging for illegal drugs to be smuggled into the

facility and discussing gang activity. We have reviewed petitioner’s

remaining contentions and conclude that none warrants reversal or

further modification. 

Entered: June 12, 2015 Frances E. Cafarell

Clerk of the Court