Summary
directing that finding of guilt in disciplinary proceedings be annulled
Summary of this case from Davidson v. KyleOpinion
Argued November 18, 1986
Decided December 18, 1986
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Mark H. Dadd, J.
Daniel J. Weinstein and Norman P. Effman for appellants.
Robert Abrams, Attorney-General (Martin A. Hotvet, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
MEMORANDUM.
In each appeal, the order of the Appellate Division should be reversed, the institutional findings of guilt nullified, and the proceedings expunged from petitioners' records.
In these article 78 proceedings challenging prison disciplinary board determinations that petitioner inmates had violated inmate rules, petitioners contend that the rules were not on file with the Secretary of State at the time they were charged, that the rules were therefore ineffective, and that the findings of guilt based on those rules must be annulled in accordance with People ex rel. Roides v Smith ( 67 N.Y.2d 899). Respondent acknowledges that the rules were not on file, but claims that there was no need to file them since there was a "parent regulation" on file proscribing the conduct of which petitioners were found guilty (7 N.Y.CRR 250.1). Respondent's attempt to distinguish Roides, however, is unpersuasive for, as respondent acknowledges, the same regulation was equally applicable in the Roides cases. Moreover, petitioners here were not charged under the filed "parent regulation"; they were charged with having violated the unfiled inmate rules. At the time petitioners were charged, the inmate rules were not effective owing to the lack of filing (People v Cull, 10 N.Y.2d 123), and the proceedings must therefore be annulled in accordance with People ex rel. Roides v Smith ( 67 N.Y.2d 899, supra) and Matter of Jones v Smith ( 64 N.Y.2d 1003).
Whether or not new charges under filed regulations can hereafter be lodged against petitioners for the alleged misconduct is an issue we do not reach on this appeal.
Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER and TITONE concur; Judge HANCOCK, JR., taking no part.
In each case: Order reversed, without costs, the institutional findings of guilt nullified, and the proceedings expunged from petitioner's records, in a memorandum.