In the Matter of Anthony T. Crosson, Petitioner, v. Thomas A. Coughlin, III, as Commissioner of Department of Correctional Services, Respondent

In the Matter of Anthony T. Crosson, Petitioner, v Thomas A. Coughlin, III, as Commissioner of Department of Correctional Services, Respondent. [604 NYS2d 878] [MAJORITY] —Case held, decision reserved, motion to relieve counsel’s assignment granted, and new counsel to be assigned. Memorandum: Petitioner’s attorney was assigned to represent petitioner in the present proceeding to review respondent’s determination finding petitioner guilty of violating certain prison disciplinary rules. Counsel has moved to be relieved of his assignment on the ground that no nonfrivolous issues exist (see, People v Crawford, 71 AD2d 38) because petitioner’s release to parole supervision has rendered the proceeding moot. Regardless of whether he has been released from custody, however, "petitioner is entitled to have an institutional record free from improperly obtained findings of disciplinary rule violations” (Matter of Grant v Senkowski, 146 AD2d 948, 949; see also, Matter of Nelson v Coughlin, 148 AD2d 779, 780; Matter of Cunningham v Keane, 147 Misc 2d 17, 18). Petitioner’s challenge to the determination, therefore, is not moot. We relieve counsel of his assignment and assign new counsel to file a brief addressing whether respondent’s determination is based upon substantial evidence and any other nonfrivolous issues found by counsel upon a review of the record. (Article 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present—Green, J. P., Pine, Lawton, Fallon and Davis, JJ.