institutional rule in New York

1990Inasmuch as an inmate cannot be found guilty of violating an institutional rule of which he has no actual knowledge (Correction Law § 138 [5]; Matter of Collins v Hammock, supra), petitioner’s contraband violation and the proceedings had thereon should be expunged from his record.

1985The statute specifically requires actual knowledge of the institutional rule as the basis for discipline (Matter of Collins v Hammock, 52 NY2d 798, 800 ).

2000Moreover, inasmuch as we conclude that the decision to withhold petitioner’s good time allowance was made in accordance with the law and was properly based upon petitioner’s violation of an institutional rule, judicial review is precluded (see, Correction Law § 803 [1] [a]; [4]; Matter of Urbina v McGinnis, 270 AD2d 535, 536 ).

1999The record contains substantial evidence to support the determination of the Commissioner of the New York State Department of Correctional Services that the petitioner, an inmate at the Fishkill State Correctional facility, violated an institutional rule by being in possession of a weapon (see, CPLR 7803 [4]; Matter of Boyd v Constantine, 81 NY2d 189, 196 ; Matter of Ekinci v New York State Dept, of Social Servs., 205 AD2d 622 ; Matter ofKoh v Perales, 173 AD2d 477, 478 ).

1999The record contains substantial evidence to support the determination of the Commissioner of the New York State Department of Correctional Services that the petitioner, an inmate at the Fishkill State Correctional facility, violated an institutional rule by being in possession of a weapon (see, CPLR 7803 [4]; Matter of Boyd v Constantine, 81 NY2d 189, 196 ; Matter of Ekinci v New York State Dept, of Social Servs., 205 AD2d 622 ; Matter ofKoh v Perales, 173 AD2d 477, 478 ).

1999The petitioner’s remaining contentions are unpreserved for our review (see, Horton v Smith, 51 NY2d 798 ; Matter of Baker v Chief of N. Y.

1999The record contains substantial evidence to support the determination of the Commissioner of the New York State Department of Correctional Services that the petitioner, an inmate at the Fishkill State Correctional facility, violated an institutional rule by being in possession of a weapon (see, CPLR 7803 [4]; Matter of Boyd v Constantine, 81 NY2d 189, 196 ; Matter of Ekinci v New York State Dept, of Social Servs., 205 AD2d 622 ; Matter ofKoh v Perales, 173 AD2d 477, 478 ).

1987The observation of a correction officer that petitioner was bobbing his head up and down on a picnic table does not, by itself, constitute substantial evidence that petitioner used marihuana (cf., Matter of Cornish v Coughlin, 122 AD2d 495 ).

1987Memorandum: Respondent’s determination that petitioner violated an institutional rule by using marihuana is not supported by substantial evidence because the reliability of two "EMIT” tests upon which the finding was based was not established on this record (see, Matter of Lahey v Kelly, 125 AD2d 923 , lv granted 69 NY2d 608 ).

1987As 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.

1987As 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.

1986Also not prejudicial was the fact that several correction officers testified in uniform, since County Court properly instructed the jury that their testimony was not entitled to greater weight by virtue of their employment (cf. People v Gadsden, 80 AD2d 508 ).

1984Where a prison inmate is subjected to disciplinary action for the violation of an institutional rule, the determination must be supported by substantial evidence (Matter of Witherspoon v LeFevre, 82 AD2d 959 , app dsmd 54 NY2d 829 ).