
    In the Matter of Francisco Lemonier, Petitioner, v Glenn S. Goord, as Commissioner of the New York State Department of Correctional Services, et al, Respondents.
    [663 NYS2d 1014]
   Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating prison disciplinary rules prohibiting arson and refusing to obey a direct order. He was ultimately given a penalty of 12 months’ confinement to the special housing unit with loss of privileges, which has been served. Introduced in evidence at the disciplinary hearing was the misbehavior report and the testimony of two correction officers, averring that petitioner was observed running through the cellblock with a group of other inmates all of whom refused direct orders to return to their cells for “lock in”. A fire was subsequently discovered burning in one of the cells.

Substantial evidence supports the determination finding petitioner guilty of refusing to obey a direct order (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). The misbehavior report and the testimony of the correction officers was bolstered by petitioner’s own testimony in which he admitted refusing to obey the order to lock in. There is, however, insufficient evidence to support the finding that petitioner is guilty of arson. As conceded by the Attorney-General, no evidence was presented linking petitioner to the fire.

We have examined petitioner’s remaining contentions and find them to be either without merit or unpreserved for our review.

Cardona, P. J., Mikoll, Crew III, White and Yesawich Jr., JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of the charge of arson; respondents are directed to expunge from petitioner’s institutional record all references thereto; and, as so modified, confirmed.  