State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 14, 2008 502792
________________________________
In the Matter of ANTHONY
WASHINGTON,
Petitioner,
v
MEMORANDUM AND JUDGMENT
DONALD SELSKY, as Director of
Special Housing and Inmate
Disciplinary Programs,
et al.,
Respondents.
________________________________
Calendar Date: December 19, 2007
Before: Cardona, P.J., Peters, Spain, Kane and Malone, JJ.
__________
Anthony Washington, Malone, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (William E.
Storrs of counsel), for respondents.
__________
Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Albany County) to
review a determination of the Commissioner of Correctional
Services which found petitioner guilty of violating a prison
disciplinary rule.

Following an incident in which petitioner asked a female
correction officer to accompany him to an office where he gave
her a religious book, he was charged in a misbehavior report with
solicitation, stalking and harassment. Following a tier III
disciplinary hearing, he was found guilty of the charge of
harassment and the determination was later affirmed on
administrative appeal. This CPLR article 78 proceeding ensued.

Upon reviewing this record, we do not find that substantial
evidence supports the determination at issue. The female officer
admitted that she had had conversations with petitioner in the
past concerning religion, and petitioner testified that, based
upon these conversations, he decided to give her the book as a
gift. Although the officer testified that petitioner exhibited
an "eerie" smile which she found "very unnerving," she did not
indicate that he engaged in any inappropriate or disrespectful
behavior and she confirmed that he had always addressed her
professionally in the past. Petitioner's conduct appears to have
been a continuation of a cordial relationship between the officer
and petitioner.

Under these circumstances, we cannot conclude that it rose
to the level of harassment as contemplated by 7 NYCRR 270.2 (B)
(8) (ii) (see e.g. Matter of Costantino v Goord, 38 AD3d 659, 660
[2007]; Matter of Royster v Goord, 26 AD3d 503, 504 [2006];
compare Matter of Richards v Kuhlmann, 251 AD2d 939, 939-940
[1998]). Accordingly, the determination must be annulled. Given
our disposition, we need not address petitioner's remaining
claims.

Cardona, P.J., Peters, Spain, Kane and Malone, JJ., concur.

ADJUDGED that the determination is annulled, without costs, petition granted and the Commissioner of Correctional Services is directed to expunge all references to this matter from petitioner's institutional record.

ENTER:
Michael J. Novack
Clerk of the Court