In the Matter of Leonza Watkins, Petitioner, v. Philip Coombe, Jr., as Acting Commissioner of New York State Department of Correctional Services, Respondent

In the Matter of Leonza Watkins, Petitioner, v Philip Coombe, Jr., as Acting Commissioner of New York State Department of Correctional Services, Respondent. [653 NYS2d 750] [MAJORITY] —Determination unanimously annulled on the law without costs and petition granted. Memorandum: Based upon a misbehavior report written by a correction officer, petitioner was charged with a violation of inmate rule 106.10 (7 NYCRR 270.2 [B] [7] [i]; Refusal To Follow a Direct Order) and inmate rule 109.12 (7 NYCRR 270.2 [B] [10] [iii]; Inmate Movement). At his Tier II hearing, petitioner pleaded not guilty to both charges. The Hearing Officer found petitioner not guilty of a violation of inmate rule 109.12, but guilty of a violation of inmate rule 106.10. The Hearing Officer did not make an express finding that petitioner heard the order given but merely found that he should have heard it. "Absent a finding that petitioner heard the order, it could not be determined that he refused to obey it” (Matter of Midlarsky v Kelly, 145 AD2d 992, 993). The determination therefore must be annulled and all reference to the proceeding expunged from petitioner’s institutional record (see, Matter of Varela v Coughlin, 199 AD2d 1007, 1008; Matter of Midlarsky v Kelly, supra, at 993). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present—Green, J. P., Pine, Doerr, Boehm and Fallon, JJ.