Jenkins v. Goord

—Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: The misbehavior report and videotape of the subject incident constitute substantial evidence supporting the determination that petitioner violated inmate rules 104.11 (7 NYCRR 270.2 [B] [5] [ii] [engaging in violent conduct]), 104.13 (7 NYCRR 270.2 [B] [5] [iv] [creating a disturbance]), 100.11 (7 NYCRR 270.2 [B] [1] [ii] [assaulting a staff member]) and 106.10 (7 NYCRR 270.2 [B] [7] [i] [refusing to obey a direct order]) (see, People ex rel. Vega v Smith, 66 NY2d 130 , 139). Petitioner’s explanation of the events presented a credibility issue for the Hearing Officer to resolve (see, Matter of Foster v Coughlin, 76 NY2d 964 , 966).

Respondent concedes that there is insufficient evidence to support the determination that petitioner violated inmate rules 105.12 (7 NYCRR 270.2 [B] [6] [iii] [engaging in unauthorized organizational activity]) and 113.21 (7 NYCRR 270.2 [B] [14] [xii] [possessing unauthorized literature]). We therefore modify the determination and grant the amended petition in part by annulling the determination that petitioner violated inmate rules 105.12 and 113.21. Because respondent imposed a single penalty and the record does not establish any relation between the violations and the penalty imposed, the penalty is vacated