SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
292
TP 14-01720
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ.
IN THE MATTER OF LAWRENCE PEREZ, PETITIONER,
V MEMORANDUM AND ORDER
ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK
STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION, RESPONDENT.
KAREN MURTAGH, EXECUTIVE DIRECTOR, PRISONERS’ LEGAL SERVICES OF NEW
YORK, BUFFALO (DAVID W. BENTIVEGNA OF COUNSEL), FOR PETITIONER.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH 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, Wyoming County [Michael M.
Mohun, A.J.], entered September 22, 2014) to review a determination of
respondent. The determination found after a tier III hearing that
petitioner had violated an inmate rule.
It is hereby ORDERED that the determination is unanimously
annulled on the law without costs, the petition is granted, the
penalty is vacated, and respondent is directed to expunge from
petitioner’s institutional record all references to the violation of
inmate rule 105.14 (7 NYCRR 270.2 [B] [6] [v]).
Memorandum: In this CPLR article 78 proceeding, petitioner seeks
review of a tier III hearing determination finding him guilty of
violating inmate rule 105.14 (7 NYCRR 270.2 [B] [6] [v] [unauthorized
organizations]). We agree with petitioner that the determination is
not supported by substantial evidence (see generally People ex rel.
Vega v Smith, 66 NY2d 130, 139). The evidence at the disciplinary
hearing established that petitioner had possession of printed material
related to an unauthorized organization, but there was no evidence
that the “material advocates either expressly or by clear implication,
violence based upon race, religion, sex, sexual orientation, creed,
law enforcement status or violence or acts of disobedience against
department employees or that could facilitate organizational activity
within the institution” (7 NYCRR 270.2 [B] [6] [v]; see Matter of
Kimbrough v Fischer, 96 AD3d 1251, 1252).
Entered: March 20, 2015 Frances E. Cafarell
Clerk of the Court