Green v. Coughlin — 122 A.D.2d 605

Majority

p. 605

In the Matter of Leroy Green, Appellant, v Thomas Coughlin, as Commissioner of New York State Department of Correctional Services, Respondent.

— Judgment unanimously reversed, on the law, petition granted, determination annulled

p. 606

and all references thereto expunged from petitioner’s record.

Memorandum: Because the inmate behavior rules relied upon by the Commissioner in this disciplinary matter (see, 7 NYCRR part 270) "were not filed with the Secretary of State at the time of the alleged violations * * * the rules were of no effect whatever, and findings of guilt based on them must be vacated” (People ex rel. Roides v Smith, 67 NY2d 899 , 901; see, Matter of Jones v Smith, 64 NY2d 1003 ). This argument may be raised for the first time on appeal (People ex rel. Roides v Smith, supra). (Appeal from judgment of Supreme Court, Cayuga County, Contiguglia, J., and art 78 proceeding transferred by said judgment.) Present — Dillon, P. J., Callahan, Denman, Green and Pine, JJ.

Cases cited

People ex rel. Roides v. Smith 67 NY2d 899 N.Y. 1986-04-01 at 901 p. 606
Jones v. Smith 64 NY2d 1003 N.Y. 1985-03-28 p. 606