
    In the Matter of Romualdo Gonzalez, Petitioner, v Brian Fischer, as Commissioner of New York State Department of Correctional Services, Respondent.
    [850 NYS2d 826]
   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 July 24, 2007) to annul a determination of respondent. The determination found after a tier II 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 113.23 (7 NYCRR 270.2 [B] [14] [xiii]) 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 various inmate rules. As respondent correctly concedes, the determination finding that petitioner violated inmate rule 113.23 (7 NYCRR 270.2 [B] [14] [xiii] [possession of contraband]) 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 that rule (see Matter of Vasquez v Goord, 284 AD2d 903 [2001]). Because it appears from the record that petitioner has already served his administrative penalty, the appropriate remedy with respect to that violation is expungement (see Matter of Stacchini v Filion, 306 AD2d 914 [2003]). Thus, we direct respondent to expunge from petitioner’s institutional record all references to the violation of that rule. The determination with respect to the remaining inmate rules violated by petitioner is supported by substantial evidence (see generally People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]). Present—Smith, J.P., Lunn, Peradotto, Green and Pine, JJ.  