
    In the Matter of Franklin Cuevas, Petitioner, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, et al., Respondents.
   Weiss, J.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Chemung County) to review a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an inmate at Elmira Correctional Facility, was found guilty after a Superintendent’s proceeding (7 NYCRR part 254) of violating an institutional rule prohibiting assault and was given 60 days’ confinement in the special housing unit. As in this court’s recent decision in Matter of McAllister v Jones (129 AD2d 895), the Attorney-General has conceded that the rules of conduct were not properly on file with the Secretary of State at the time of the charge and that, pursuant to Matter of Davidson v Smith (69 NY2d 677), the disciplinary proceedings were invalid. Accordingly, petitioner’s finding of guilt must be nullified and the proceedings expunged from his records (see, supra; see also, Matter of Hop-Wah v Coughlin, 69 NY2d 791; People ex rel. Roides v Smith, 67 NY2d 899).

Determination annulled, without costs, petition granted and matter remitted to respondents for further proceedings not inconsistent herewith. Mahoney, P. J., Kane, Casey, Weiss and Harvey, JJ., concur.  