McAllister v. Jones

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Washington County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of possession of prison contraband following a disciplinary hearing (see, 7 NYCRR part 253) and assessed a penalty of 30 days’ keeplock and loss of certain privileges. The alleged contraband, found in petitioner’s prison cell, consisted of maps, prescribed medications, bleach, and various books and papers, the possession of which respondent claimed to be prohibited by Department of Correctional Services rules published in an inmate handbook entitled "Standards of Inmate Behavior”.

*896We are persuaded by petitioner’s contention on review that since the foregoing rules were not on file with the Secretary of State at the time of his alleged infraction, they were ineffective and could not support a disciplinary proceeding based thereon (see, Matter of Davidson v Smith, 69 NY2d 677, 678; People ex rel. Roides v Smith, 67 NY2d 899, 901; Matter of Jones v Smith, 64 NY2d 1003, 1005; see also, People v Motley, 69 NY2d 870). Since there were then no other filed regulations defining contraband, petitioner’s finding of guilt must be annulled and all reference thereto expunged from his record. The Attorney-General with commendable candor has conceded that this case is indistinguishable from Matter of Davidson v Smith (supra) with respect to the effect of the failure to file the rules allegedly violated herein and, accordingly, does not oppose the relief sought.

Determination annulled, without costs, petition granted and matter remitted to respondent for further proceedings not inconsistent herewith. Mahoney, P. J., Kane, Weiss, Yesawich, Jr., and Levine, JJ., concur.