
    In the Matter of Michael Smith, Petitioner, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, et al., Respondents.
    [606 NYS2d 851]
   Determination unanimously annulled on the law and petition granted. Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul respondents’ determination, made after a Tier III superintendent’s hearing, that he violated an inmate rule that prohibits the soliciting or requesting of goods and services without prior approval. The misbehavior report alleged only that 68 inmate disbursement forms were found in petitioner’s possession, 60 of which were made payable to the Clerk of the Federal Court in Utica. Petitioner testified that the disbursement forms found in his possession were voluntary contributions by other inmates toward the filing fee for a "1983 civil rights action”. The testimony of two inmates who had given petitioner disbursement forms corroborated petitioner’s account. Respondents presented no evidence that petitioner had solicited the funds. Consequently, we annul the determination and grant the petition. (Article 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present—Pine, J. P., Balio, Doerr and Boehm, JJ.  