Proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Correctional Services dated December 9, 2008, which affirmed a determination of a hearing officer dated October 29, 2008, made after a tier III disciplinary hearing, finding the petitioner guilty of violating a prison disciplinary rule, and imposing a penalty.
Adjudged that the petition is granted and the determination is annulled, without costs or disbursements.
Under the unusual facts of this case, the hearing officer’s determination was not supported by substantial evidence (cf. Matter of Miller v DeBuono, 90 NY2d 783, 793 [1997]). Fisher, J.P., Dillon, Florio and Lott, JJ., concur.