SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1225 

TP 15-00597 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ. 

 

IN THE MATTER OF GABRIEL M. WILLIAMS, PETITIONER, 

V MEMORANDUM AND ORDER

ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK 

STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY 

SUPERVISION, RESPONDENT. 

GABRIEL M. WILLIAMS, PETITIONER PRO SE. 

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

COUNSEL), FOR RESPONDENT. 

 

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, Erie County [M. William

Boller, A.J.], entered April 9, 2015) to review a determination of

respondent. The determination found 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 that part of the determination finding that petitioner

violated inmate rule 101.22 (7 NYCRR 270.2 [B] [2] [v]) and vacating

the recommended loss of good time, and as modified the determination

is confirmed without costs, respondent is directed to expunge from

petitioner’s institutional record all references to the violation of

that rule, and the matter is remitted to respondent 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 inmate rules 101.22 (7 NYCRR 270.2 [B] [2] [v] [stalking]),

103.20 (7 NYCRR 270.2 [B] [4] [ii] [soliciting]), and 121.12 (7 NYCRR

270.2 [B] [22] [iii] [telephone program violation]). To the extent

that petitioner contends that the determination finding that he

violated inmate rule 121.12 is not supported by substantial evidence,

we note that his plea of guilty to that violation precludes our review

of his contention (see Matter of Edwards v Fischer, 87 AD3d 1328,

1329). We further conclude that there is substantial evidence to

support the determination with respect to inmate rule 103.20 (see

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

As respondent correctly concedes, however, the determination with

respect to inmate rule 101.22 is not supported by substantial evidence
-2- 1225 

TP 15-00597 

(see Matter of Monroe v Fischer, 87 AD3d 1300, 1301), and we therefore

modify the determination accordingly. Inasmuch as the record

establishes that petitioner has served his administrative penalty, we

direct respondent to expunge from petitioner’s institutional record

all references to the violation of that inmate rule (see Matter of

Stewart v Fischer, 109 AD3d 1122, 1123, lv denied 22 NY3d 858). 

Although there is no need to remit the matter to respondent for

reconsideration of those parts of the penalty already served by

petitioner, we note that the Hearing Officer also recommended nine

months’ loss of good time, and the record does not reflect the

relationship between the violations and that recommendation (see

Monroe, 87 AD3d at 1301). We therefore further modify the

determination by vacating the recommended loss of good time, and we

remit the matter to respondent for reconsideration of that

recommendation in light of our decision with respect to inmate rule

101.22 (see id.).

We have reviewed petitioner’s remaining contentions and conclude

that none warrants reversal or further modification.

Entered: November 20, 2015 Frances E. Cafarell

Clerk of the Court