— Judgment unanimously reversed, on the law, petition granted, determination annulled *606and all references thereto expunged from petitioner’s record.
Memorandum: Because the inmate behavior rules relied upon by the Commissioner in this disciplinary matter (see, 7 NYCRR part 270) "were not filed with the Secretary of State at the time of the alleged violations * * * the rules were of no effect whatever, and findings of guilt based on them must be vacated” (People ex rel. Roides v Smith, 67 NY2d 899, 901; see, Matter of Jones v Smith, 64 NY2d 1003). This argument may be raised for the first time on appeal (People ex rel. Roides v Smith, supra). (Appeal from judgment of Supreme Court, Cayuga County, Contiguglia, J., and art 78 proceeding transferred by said judgment.) Present — Dillon, P. J., Callahan, Denman, Green and Pine, JJ.