SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

197 

TP 11-01963 

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ. 

 

IN THE MATTER OF REGINALD MCFADDEN, PETITIONER, 

V MEMORANDUM AND ORDER

ALBERT PRACK, DIRECTOR, SPECIAL 

HOUSING/INMATE DISCIPLINARY, RESPONDENT. 

 

REGINALD MCFADDEN, 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, Cayuga County [Mark H.

Fandrich, A.J.], entered September 22, 2011) 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 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 113.27 (7 NYCRR 270.2 [B] [14] [xvii]) 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 inmate rule, and the matter is remitted to respondent for further

proceedings in accordance with the following Memorandum: Petitioner

commenced this CPLR article 78 proceeding seeking to annul the

determination, following a Tier III disciplinary hearing, that he

violated inmate rules 103.20 (7 NYCRR 270.2 [B] [4] [ii] [soliciting

goods or services]), 113.27 (7 NYCRR 270.2 [B] [14] [xvii]

[soliciting, possessing or exchanging other inmate crime and sentence

information]), 180.11 (7 NYCRR 270.2 [B] [26] [ii] [violating facility

correspondence guidelines]), and 180.17 (7 NYCRR 270.2 [B] [26] [vii]

[providing legal assistance to another inmate without prior

approval]). We note at the outset that respondent correctly concedes

that petitioner lacked adequate notice of the alleged violation of

inmate rule 113.27. We therefore modify the determination and grant

the petition in part by annulling that part of the determination that

petitioner violated inmate rule 113.27, and we direct respondent to

expunge from petitioner’s institutional record all references to the

violation of that inmate rule (see generally Matter of Edwards v

Fischer, 87 AD3d 1328, 1330). Inasmuch as it appears from the record
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TP 11-01963 

that petitioner has already served his administrative penalty, the

appropriate remedy is expungement of all references to the violation

of that rule from his institutional record (see Matter of Brown v

Fischer, 91 AD3d 1336, 1337). We note, however, that there was also a

recommended loss of good time, and the record does not reflect the

relationship between the violations of the inmate rules and that

recommendation. We therefore further modify the determination by

vacating that recommendation, and we remit the matter to respondent

for reconsideration of the recommended loss of good time (see Matter

of Cross v Goord, 2 AD3d 1425, 1426). 

Contrary to petitioner’s further contention, the determination

that he violated the remaining inmate rules is supported by

substantial evidence (see generally People ex rel. Vega v Smith, 66

NY2d 130, 139). Petitioner failed to exhaust his administrative

remedies with respect to his contention that respondent improperly

intercepted letters addressed to him inasmuch as he failed to raise

that contention at his Tier III hearing, “and this Court has no

discretionary authority to reach that contention” (Matter of Fuentes v

Fischer, 89 AD3d 1468; see Matter of Nelson v Coughlin, 188 AD2d 1071,

1071, appeal dismissed 81 NY2d 834). We have reviewed petitioner’s

remaining contentions and conclude that they are without merit. 

Entered: March 23, 2012 Frances E. Cafarell

Clerk of the Court