
    In the Matter of Eric Reid, Petitioner, v Brian Fischer, as Commissioner of New York State Department of Correctional Services, Respondent.
    [864 NYS2d 649]
   Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Mark H. Dadd, A.J.], entered March 4, 2008) to review a determination of respondent. The determination found after a tier III hearing that petitioner violated various inmate rules.

It is hereby ordered that the determination is unanimously modified on the law and the petition is granted in part by annulling that part of the determination finding that petitioner violated inmate rule 114.10 (7 NYCRR 270.2 [B] [15] [i]) and as modified the determination is confirmed without costs, and respondent is directed to expunge from petitioner’s institutional record all references to the violation of that rule.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination that he violated inmate rules 113.10 (7 NYCRR 270.2 [B] [14] [i] [possession of a weapon]) and 114.10 (7 NYCRR 270.2 [B] [15] [i] [smuggling]). The determination that petitioner violated inmate rule 113.10 is supported by substantial evidence (see People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]), but, as respondent concedes, the determination that he violated inmate rule 114.10 is not supported by substantial evidence. We therefore modify the determination and grant the petition in part by annulling that part of the determination finding that petitioner violated inmate rule 114.10, and we direct respondent to expunge from petitioner’s institutional record all references to the violation of that rule. Because the penalty of 180 days in the special housing unit and loss of telephone, packages and commissary privileges has already been served, there is no need to remit the matter to respondent for reconsideration of that penalty. Present—Scudder, EJ., Martoche, Fahey, Peradotto and Gorski, JJ.  