
    In the Matter of Ronald Holloway, Petitioner, v Ernest Edwards, as Superintendent of Otisville Correctional Facility, et al., Respondents.
    [679 NYS2d 715]
   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 respondents which found petitioner guilty of violating a prison disciplinary rule.

In this CPLR article 78 proceeding, petitioner is challenging respondents’ determination finding him guilty of threatening to kill the Superintendent of the correctional facility where he was confined. To sustain the determination, we must find that the record contains such relevant proof as a reasonable mind may accept as adequate to support the conclusion that petitioner threatened the Superintendent (see, People ex rel. Vega v Smith, 66 NY2d 130, 139). At the disciplinary hearing, petitioner denied making the threat and his witnesses, including a correction officer, testified that they did not hear petitioner make the alleged threat. The Hearing Officer nevertheless found petitioner guilty; however, at the conclusion of the hearing, the Hearing Officer stated that “if I felt [petitioner] made a threat toward the Superintendent or any employee I would have dealt with it much more severely than I did”. Inasmuch as this statement vitiates the finding of guilt, we find that the challenged determination is not supported by substantial evidence. Accordingly, the determination is annulled and all references to the incident should be expunged from petitioner’s record.

Cardona, P. J., White, Peters, Carpinello and Graffeo, JJ., concur. Adjudged that the determination is annulled, without costs, petition granted and respondents are directed to expunge all references to this matter from petitioner’s institutional record.  