In the Matter of Michael Roode, Petitioner, v. Melvin Hollins, as Superintendent of Oneida Correctional Facility, Respondent

In the Matter of Michael Roode, Petitioner, v Melvin Hollins, as Superintendent of Oneida Correctional Facility, Respondent. [711 NYS2d 817] [MAJORITY] —Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: At the Tier III hearing, petitioner pleaded guilty to violating inmate rules 113.23 (7 NYCRR 270.2 [B] [14] [xiv]), 116.10 (7 NYCRR 270.2 [B] [17] [i]) and 116.13 (7 NYCRR 270.2 ¡B] [17] [iv]). At the conclusion of the hearing, the Hearing Officer determined that petitioner also violated inmate rule 113.21 (7 NYCRR 270.2 [B] [14] [xii]). Petitioner, as limited by his brief, challenges the determination. only with respect to inmate rule 113.21. As conceded by respondent, there is insufficient evidence to support the determination that petitioner violated inmate rule 113.21. We therefore modify the determination and grant the petition in part by annulling the determination that petitioner violated inmate rule 113.21. Because one penalty was imposed and the record fails to specify any relation between the violations and the penalty, we further modify the determination by vacating the penalty, and we remit the matter to respondent for imposition of an appropriate penalty on the remaining violations (see, Matter of Whitt v Goord, 259 AD2d 1045, 1046). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Oneida County, Parker, J.) Present — Green, J. P., Hayes, Hurlbutt and Kehoe, JJ.