Opinion
May 21, 1987
Appeal from the Supreme Court, Chemung County.
Petitioner, an inmate at Elmira Correctional Facility, was found guilty after a Superintendent's proceeding (7 N.Y.CRR part 254) of violating an institutional rule prohibiting assault and was given 60 days' confinement in the special housing unit. As in this court's recent decision in Matter of McAllister v. Jones ( 129 A.D.2d 895), the Attorney-General has conceded that the rules of conduct were not properly on file with the Secretary of State at the time of the charge and that, pursuant to Matter of Davidson v. Smith ( 69 N.Y.2d 677), the disciplinary proceedings were invalid. Accordingly, petitioner's finding of guilt must be nullified and the proceedings expunged from his records (see, supra; see also, Matter of Hop-Wah v. Coughlin, 69 N.Y.2d 791; People ex rel. Roides v. Smith, 67 N.Y.2d 899).
Determination annulled, without costs, petition granted and matter remitted to respondents for further proceedings not inconsistent herewith. Mahoney, P.J., Kane, Casey, Weiss and Harvey, JJ., concur.