Opinion
September 27, 1988
Appeal from the Supreme Court, Wyoming County, Ostrowski, J.
Present — Dillon, P.J., Callahan, Boomer, Balio and Lawton, JJ.
Judgment unanimously reversed on the law and petition granted, in accordance with the following memorandum: Disciplinary proceedings conducted against an inmate prior to the filing of inmate behavior rules with the Secretary of State must be vacated and expunged from institutional records (Matter of Davidson v Smith, 69 N.Y.2d 677; Matter of Jones v Smith, 64 N.Y.2d 1003). This issue may be raised for the first time on appeal (People ex rel. Roides v Smith, 67 N.Y.2d 899; see also, Matter of Davidson v Smith, supra). We grant the petition to the extent of directing that the findings of guilt based upon the unfiled rules be vacated and that the proceedings be expunged from petitioner's institutional records.