In the Matter of Anthony Bottom, Appellant,v.Anthony Annucci,, Respondent.

Brief

N.Y.September 11, 2015

TO BE ARGUED BY: NORMAN P. EFFMAN, ESQ. (585) 786-8450 Estimated Time: 15 Minutes STATE OF NEW YORK COURT OF APPEALS ____________________________________________________________ In the Matter of the Application of ANTHONY BOTTOM, Appellant, -v- ANTHONY ANNUCCI, Acting Commissioner, Department of Corrections and Community Supervision, Respondent ____________________________________________________________ BRIEF FOR APPELLANT Court of Appeals No. APL-2014-00142 ____________________________________________________________ NORMAN P. EFFMAN Attorney for Appellant WYOMING COUNTY ATTICA LEGAL AID BUREAU 18 Linwood Avenue Warsaw, New York 14569 (585) 786-8450 (585) 786-8478 fax DATED: August 5, 2014 TABLE OF CONTENTS Page QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . 2 FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT POINT I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 POINT II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 References to Appendix Brief Page Appendix Page 2, 7 Appellate Division Order, 3/21/14 3 2 Order granting Leave 6/12/14 1 4 Excerpt from Disciplinary Proceeding transcript 43 6 Excerpt rom Respondent’s App. Div. Brief 78 8, 9 Excerpt from Disciplinary Proceeding transcript 34-37 9 Excerpt from Disciplinary Proceeding transcript 38 10 Excerpt from Disciplinary Proceeding transcript 39-40 11 22 Excerpt from Disciplinary Proceeding transcript 42-43 TABLE OF CONTENTS (continued) Appendix References Brief Page Appendix Page 14 Disciplinary Proceeding Appeal Form 52 14 Disciplinary Proceeding Appeal Response 18 14 Excerpt from Disciplinary Proceeding transcript 40 15 Excerpt from Pro Se Petition 9-10 21 Inmate Misbehavior Report 13 TABLE OF CITATIONS Page Church of St. Paul and St. Andrew v. Barwick, 67 N Y 2d 510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Matter of Duncan v. Perales, 113 A D 2d 1127 . . . . . . . . . . . . . .23 Matter of Levine v. Board of Education of City of NY, 186 A D 2d 743 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Matter of Jones, et al. v. Smith, et al., 64 N Y 2d 1003 . . . . . . . . 16, 17, 18 Matter of Parker v. Kelly, 140 A D 2d 993 . . . . . . . . . . . . . . . . . 23 People ex rel. Vega v. Smith, 66 N Y 2d 130 . . . . . . . . . . . . . . .4, 20, 21, 23 Walton v. NYS Department of Correctional Services, 8 N Y 3d 186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 Watergate v. Buffalo Sewer Authority, 46 N Y 2d 52 . . . . . . . . . 12, 13 Wolff v. McDonnell, 418 U S 539 . . . . . . . . . . . . . . . . . . . . . . . . 18 United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 New York State Constitution Article V, §8 . . . . . . . . . . . . . . . . . 6, 16 Civil Practice Law and Rules 5602(a)(1)(I) . . . . . . . . . . . . . . . . . .2 7 N.Y.C.R.R. §270.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 5, 8, 18 Civil Practice Law and Rules 7804(g). . . . .. . . . . . . . . . . . . . . . . .7 New York State Executive Law §102 . . . . . . . . . . . . . . . . . . . . . . 16 QUESTIONS PRESENTED 1. May Appellant assert on a transferred proceeding to the Appellate Division challenging a prison disciplinary proceeding that the rule had not been properly filed with the Secretary of State, where that issue was not raised at the disciplinary hearing, in his administrative appeal, or in his petition? 2. Where Respondent’s fact-finder in a prison disciplinary proceeding determines that the alleged violation of the inmate rules was “unintentional”, could he nevertheless find him guilty based on a local correctional facility rule that had not been filed with the Secretary of State. -1- PRELIMINARY STATEMENT This is an appeal from a decision of the Appellate Division, Fourth Judicial Department, dated March 21, 2014, which dismissed Appellant’s Article 78 challenge to a determination of Respondent’s found after a Tier III hearing that Appellant had violated an inmate rule (3*). Appellant moved for leave to appeal to this Court and that motion was granted, granting leave to appeal decided and entered by this Court on the 12th day of June, 2014 (1). This Court has jurisdiction, in that the Order sought to be appealed in a final determination and appealable pursuant to CPLR §5602(a)(1)(I). Appellant, Anthony Bottom, was issued an inmate misbehavior report while at the Attica Correctional Facility dated February 28, 2013. The inmate rules are found in 7 N.Y.C.R.R. §270.2. The specific violations contained in the misbehavior report accuse Appellant of violating the following inmate rules: 113.22: An inmate shall not use or possess an article in an area where its use or possession is prohibited. _____________________________ * Numbers in parentheses refer to pages of the Appendix. -2- 114.10: Inmates shall not smuggle or attempt to smuggle or solicit others to smuggle any item in or out of the facility or from one area to another. 103.20: An Inmate shall not request or solicit goods or services from any business or any person other than immediate family members without the consent or approval of the facility superintendent or designee. 113.23: In addition to those items of contraband identified by this rule series, an inmate shall not possess any item unless it has been specifically authorized by the Superintendent or designee, the rules of the department or the local rules of the facility. (See 7 N.Y.C.R.R. §270.2, Standards of Inmate Behavior). This inmate misbehavior report provided the following description of the alleged incident: “On the above date and time, I C.O. C. Yackeren was authorized by Sergeant Levulis to frisk Inmate Bottom (77A4283) on his way to his law library callout. Upon frisking the contents of his legal folder I found he was trying to smuggle two (2) stamps inside a folded letter along with (2) two personal letters, all of which are not allowed in the law library. The two letters found I (sic) between his legal papers were a photo copy of a booktable with a book authored by inmate Bottom using his known alias, Jalil A. Muntaquim titled ‘We are our own Liberators.’ and a letter soliciting his book and revolutionary ideas and was signed by him using his known alias and his known web page address. All items confiscated were turned into the contraband office.” -3- This disciplinary hearing commenced on March 6, 2013. Mr. Bottom pled not guilty to the charges. The hearing officer dismissed all but one of the charges and found Appellant guilty of violating inmate rule 113.22, that is authorized property in an unauthorized area. In completing the forms provided for inmate disciplinary proceedings, the hearing officer stated the following: “The statement of evidence relied upon was the report by Officer Yackeren proved to be credible. Inmate Bottom pled not guilty to all the charges. It appears to this hearing officer that inmate Bottom inadvertently carried the reported items en route to the law library.” (Emphasis added). The hearing officer further articulated his reasoning at the end of the hearing where he stated: “The reason for my disposition is although inmate Bottom inadvertently carried the reported items en route to the law library, it is still not allowed. Inmate Bottom will be held accountable. Special instructions are to return all items to inmate Bottom.” (43). The sanction imposed has already been served; however, the finding of the rule violation remains on Appellant’s disciplinary record. Summary of the Arguments and Decision Below Appellant argued that the substantial evidence test as defined by this Court in People ex rel. Vega v. Smith, 66 N Y 2d 130, was not met at -4- the contested disciplinary hearing. The Rules for Inmate Behavior are filed by Respondent with the Secretary of State of the State of New York and are found in §270.2 of 7 N.Y.C.R.R. The unauthorized property, the subject of the misbehavior report, are two United States postage stamps. The specific regulation with respect to possession of postage stamps are found in the statewide rules and read as follows: “Inmates shall not be in possession of stamps in excess of $22.50, money, credit card numbers, checks, or unauthorized valuables or property.” (see 7 N.Y.C.R.R. §270.2[14][vii][113.16]). The rule under which Appellant was found guilty (113.22- prohibiting authorized articles in unauthorized areas) would be applicable in the instant case if, and only if, the postage stamps in Appellant’s possession in the law library were prohibited by a valid rule or regulation. In the instant case, the hearing officer, in order to find Appellant guilty of the alleged misconduct, had to rely not on the statewide rules and regulations but, on a “local facility rule” which prohibits otherwise authorized postage stamps in the facility law library, unless they are affixed to envelopes for mailing. -5- The evidence at the disciplinary hearing was that Appellant was unaware of the “local rule” until advised of the rule after the incident. The hearing officer found Appellant’s testimony with respect to the local rule to be credible and that his possession of the stamps, which were not affixed to an envelope for mailing, was unintentional. The record contained no information that Appellant had been provided with “notice” of the local rule prior to the incident. Appellant further argued that the “local facility rule” is unenforceable as the basis for disciplinary sanction without it first being filed with the Office of the Department of State pursuant to the New York State Constitution, Article V, §8. Respondent’s brief below argues that the misbehavior report and the hearing testimony provided substantial evidence to support the finding that Appellant possessed authorized items in unauthorized area. They further submitted that the claim that the local rule was not filed with the Secretary of State was not preserved for judicial review since the issue was not raised at the hearing, in the administrative appeal, or, in the petition (78). -6- Appellant submitted a Reply brief arguing that exhaustion of administrative remedies is not required in the instant case and that the constitutional impairment of enforcing an unfiled rule or regulation was properly raised in the proceeding when it was transferred to the Appellate Division pursuant to CPLR Article 7804(g). The Appellate Division, Fourth Judicial Department by Order entered March 21, 2014, unanimously confirmed Respondent’s decision without costs and dismissed the petition (3). -7- FACTS On February 28, 2013, Anthony Bottom was an inmate at the Attica Correctional Facility. Mr. Bottom was authorized to proceed to the law library on that date. Before arriving in the law library, he was subjected to a routine frisk. Contained in his “legal folder” were two United States postage stamps inside a folded letter. Other items were also found and confiscated, including a photocopy of a book authored by the inmate and a letter soliciting that book. The correction officer who conducted the frisk authored a misbehavior report which contained four alleged violations of the statewide rules and regulations. The charges included smuggling (114.10), solicitation for goods or services (103.20), contraband (113.23), and possessing authorized articles in an unauthorized area (113.22). Each of the charges is found codified in 7 N.Y.C.R.R. §270.2. A Tier III disciplinary proceeding was commenced on March 6, 2013 before Captain Coveny. Appellant pled not guilty to all charges (34- 37). Mr. Bottom acknowledged to the hearing officer that he was on his way to the law library when he was pulled out by the correction officer. -8- He further acknowledged that in going through the various items in his possession, the officer found some stamps. When asked if he was permitted to take stamps to the law library, the inmate replied: “I had not known prior to that there was an exception. I have since learned that you have to have stamps on the envelope to take up there.” (38). The hearing officer acknowledged the accuracy of the statement. The colloquy continued with Bottom advising the hearing officer that he had not known this rule prior to the incident. The hearing officer accepted this explanation indicating on the record “sounds fair” (38). The question and answers continued: “Coveny: Okay. So you’re familiar now at this juncture that you can’t take stamps without them being on an envelope. Bottom: Yeah, Um ... Coveny: You’re not suppose to take personal letters, right? Bottom: Uh ... Coveny: Unless they have a legal basis to them. Bottom: Right. I learned that from the ... Coveny: The handbook? -9- Bottom: The handbook that was pointed out to me by the Tier Officer. The Tier ... Coveny: Assistant? Bottom: The Assistant Officer. Coveny: Okay. Bottom: Because I had asked him, I said, ‘Would you please give me a ... the rules and regulations from the law library?’ And, he said ‘I looked in the book. I couldn’t find it.’ So, he took a bunch of ... (inaudible) ... book. And, I showed him the book and he found it for me. And, where it’s indicated in the 3.8. The facility... Coveny: How long you been in Attica Correctional? Bottom: I been here this time two years. Coveny: Two years? Bottom: Yeah, From February 5th of 11. Coveny: Okay. Bottom: And naturally, he indicated to me everything that can have, cannot have. And, I said, “Well...” Coveny: Honest mistake would you say? Bottom: Absolutely. Absolutely. I been here two years. I don’t mess with these officers and I keep my nose clean. I don’t been with guys in the yard. I do my own thing.” (39-40). -10- No other witnesses were called, no other testimony was taken. The hearing officer made the following disposition: “This is the disposition phase. The penalty phase’s process. I have rendered a disposition and I’ve now prepared to read it into the Hearing Record. On the charge of 103.20: Soliciting, I find you not guilty. On the charge of 113.23: Contraband, not guilty, 114.10: smuggling, not guilty. On the charge of 113.22: Property in an Unauthorized Area, I find you guilty. The statement of evidence relied upon was the report by Officer ... I’m sorry. The statement of evidence relied upon was the report by Officer Yackeren proved to be credible. Inmate Bottom pled not guilty to all the charges. It appears to this hearing officer that inmate Bottom inadvertently carried the reported items en route to the law library. The disposition that I’m imposing is I’m giving you credit for the 7 days pre-hearing confinement, beginning February 28th, 2013 and released today, March 6, 2013. And, I’m going to also counsel and reprimand you in that I’m going to remind you that you should be more careful when you take items to the law library. So, you don’t get in the situation where items are not allowed there are not taken. And, I’m sure you’re cognizant of that. The reason for the disposition is although inmate Bottom inadvertently carried the reported items en route to the law library, it is still not allowed. Inmate Bottom will be held accountable. Special instructions are to return all items to inmate Bottom.” (42-43). -11- A R G U M E N T POINT I THE APPELLANT MAY ASSERT ON A TRANSFERRED PROCEEDING TO THE APPELLATE DIVISION CHALLENGING A PRISON DISCIPLINARY PROCEEDING THAT THE LOCAL FACILITY RULE HAD NOT BEEN PROPERLY FILED WITH THE SECRETARY OF STATE, WHERE THE ISSUE WAS NOT RAISED AT THE DISCIPLINARY PROCEEDING IN HIS ADMINISTRATIVE APPEAL OR IN HIS PETITION. The 1978 case of this Court, Watergate v. Buffalo Sewer Authority, 46 N Y 2d 52 initially reaffirmed the general rule that one who objects to an act of an administrative agency must exhaust available administrative remedies before being permitted to litigate seeking judicial review. The Court commented: “This doctrine furthers the salutory goals of relieving the courts of the burden of deciding questions entrusted to an agency (citation omitted) preventing premature judicial interference with the administrators’ efforts to develop, even by some trial and error a co-ordinated, consistent, and legally enforceable scheme of regulation and affording the agency the opportunity, in advance of possible judicial review, to prepare a record reflective of its ‘expertise and judgment’ (see Watergate, supra, at p 57). -12- The Court goes on to explain that the “exhaustion rule” is not inflexible and is subject to important qualifications. The Court noted for example: “It need not be followed, for example, when an agency’s action is challenged as either unconstitutional or wholly beyond its grant of power (citations omitted)” (Watergate v. Buffalo Sewer, supra, at p. 57). The rationale for this would appear to be obvious if the agency’s action is alleged to be unconstitutional, it clearly could not be corrected through internal administrative reviews by that agency. More recently, this Court in Walton v. NYS Department of Correctional Services, 8 N Y 3rd 186 (2007), commented on the finality and exhaustion of remedies requirements in Article 78 proceedings. The Court noted that: “The focus of the ‘exhaustion requirement’ is not on the challenged action itself, but on whether administrative procedures are available to review that action and whether those procedures have been exhausted.” (citing Church of St. Paul and St. Andrew v, Barwick, 67 N Y 2d 510, at 521). In the instant case, Appellant did exhaust administrative remedies with respect to the issues that were contained in his pro se Article -13- 78 petition. Mr. Bottom filed a timely administrative appeal dated March 16, 2013 (52). The appeal argued that the allegation that the Appellant violated the law library rules and regulations could not stand because the search and seizure of the stamps were found in an area outside of the law library and that Appellant had not entered the law library. Mr. Bottom argued that “there is absolutely no rule prohibiting possession of stamps or personal writing in any area of Attica. There is nothing posted or listed in either rule book. The vagueness of the charge leads to bias in the adjudication of the charge” (id.). Respondent reviewed the hearing and the appeal and affirmed the disposition on May 7, 2013 (18). The appeal, in fact, reiterated what Appellant argued at his disciplinary hearing, that is that he was unaware of any rule or regulation related to the possession of stamps in the law library at the time of the incident and did not become aware of it until he was provided with the information prior to his disciplinary hearing (40). Mr. Bottom submitted a pro se Article 78 petition which was verified on May 16, 2013, seeking review of the hearing concluded on March 6, 2013. -14- In his petition, Appellant specifically argued that his possession of the two stamps was not in violation of any statewide rule and that there was no rule or regulation which prohibited him from possessing the items (9-10). While neither the administrative appeal, nor the petition specifically challenged the “local facility rule” on constitutional grounds, the hearing record, the administrative appeal, and the petition all argue that Appellant’s actions did not violate the inmate rules and regulations under which he was charged. Certainly, Respondent was on notice that Appellant was not aware of the local facility rule regarding the library at the time of the alleged misbehavior and that his actions did not violate the charged inmate rules and regulations contained in the inmate misbehavior report. In the case, the constitutional claim does not involve any factual issues which could be reviewed at the administrative level. If this claim did hinge on a factual issue, then it must first be addressed to the agency so that a factual record can be established (see Matter of Levine v. Board of Education of City of NY, 186 A D 2d 743). The constitutional claim in the instant case is based on this Court’s determination that inmate rules and regulations, in order to be enforceable, must first be filed with the -15- Secretary of State pursuant to the New York State Constitution. The basis of the misbehavior report and the finding of inmate misbehavior is based solely on a local facility rule involving stamps being brought into the Attica law library. There are no facts in dispute. Mr. Bottom had, in his property, two United States postage stamps which were not affixed to an envelope for mailing. There is no rule that has been filed with the Secretary of State which would prohibit Mr. Bottom from possessing the two stamps in question. The alleged prohibition is based upon a rule that was unknown to Appellant before the incident. He had no notice of that rule until after the incident. Absent a valid rule, there was no prohibited act committed by Appellant. The constitutional impairment of the rule which was enforced by Respondent is properly reviewable by this Court. In Matter of Jones, et al. v. Smith, et al., 64 N Y 2d 1003 (1985), this Court held that the New York State Constitution, Article V, §8, required the Department of Correctional Services (now the Department of Corrections and Community Supervision) to file its Inmate Rules and Regulations with the Office of the Department of State before those rules or regulations could be effective. The New York State Executive Law §102 implements these constitutional mandates and requires that a certified copy -16- of such rules and regulations be transmitted to the Secretary of State. The exception are rules and regulations which relate solely to the organization or internal management of the department of board. This Court held that rules and regulation of the correctional institutions which effect prisoners’ “liberty” interests, may not properly be said to involve matters of organization or internal management and, therefore, the Court reasoned that they are not exempt from the filing requirement of the New York State Constitution and the Executive Law (see Jones, et. al, supra at p. 1005). This Court reasoned that: “The requirement that the rules and regulations be filed serves to make them available to the public, to give the public notice thereof and provide a ‘common’ and ‘definite place’ * * * where the exact content of such rules and regulations, including any changes, might be found *** a ‘central’ place *** ‘where *** anyone may examine in that one place what the law or rule is that *** affect[s] his particular interest’. (citing People v. Cull, 10 N Y 2d 123, 128; Matter of New York State Coalition of Public Employers v. New York State Dept. Of Labor, 60 N Y 2d 789, 791).” The filing of the rules, as noted by the Court serves to fulfill the “notice” component of due process. In examining Respondent’s filed rules and regulations, there is, in fact, a specific regulation regarding -17- inmate behavior with respect to possession of postage stamps. The Respondent has filed the following rule: “Inmates shall not be in possession of stamps in excess of $22.50, money, credit card numbers, checks, or unauthorized valuables or property.” (see 7 N.Y.C.R.R. §270.2[14][vii][113.16]). It is this rule that the inmate is presumed to have notice of. It is this rule that meets the constitutional requirements of the Due Process Clause, the Federal constitution, and the requirements of the New York State Constitution and the Executive Law. The attempt to supercede the statewide filed rule and regulation with a local facility rule violates the Due Process Clause of the United States Constitution, the New York State Constitution which requires the filing with the Secretary of State, and the Executive Law (see Wolff v. McDonnell, 418 U S 539; Jones, et al., supra). A finding that the local facility rule regarding stamps in the law library was not effective because of the failure to file eliminates any rationale for Respondent’s finding that Appellant possessed authorized property in an unauthorized location. -18- Inasmuch as the local facility rules were not filed with the Secretary of State as required at the time of the disciplinary proceeding against Anthony Bottom, they were not effective and the proceeding must be ordered expunged from his institutional records. -19- POINT II INSUFFICIENT EVIDENCE WAS ADDUCED AT THE CHALLENGED SUPERINTENDENT’S HEARING TO SUPPORT A FINDING OF GUILT. In 1985, this Court articulated the standard of proof necessary to satisfy the substantial evidence test in prison disciplinary proceedings. In the case of People ex rel. Vega v. Smith, 66 N Y 2d 130, this Court held: “While the question of evidence that rises to the level of ‘substantial’ cannot be precisely defined, the inquiry is whether ‘in the end the finding is supported by the kind of evidence on which reasonable persons are accustomed to rely in serious affairs’ (citations omitted)” (Vega, supra, at p. 139). In Vega, the Court examined each of the misbehavior reports relied on by Respondents and concluded that there was substantial evidence in each case with a finding: “In each case, the misbehavior report described with specificity, an incident which the officer claims to have witnessed and the rule allegedly violated. Each report is dated the same day as the incident, signed by its author and endorsed or initialed by one or more other correction officers. Respondents were offered and in two of the six cases accepted assistance to aid in their preparation for the hearing. No witnesses were requested in advance. At the hearings, each respondent was advised that he could call witnesses on his behalf. One of the six -20- asked that witnesses be called, the others did not. Although all respondents pleaded not guilty, in each instance the response was little more than a denial of the charge. No respondent offered a defense that suggested the need for additional inquiry - - for example, a showing that he had not been in the area or had not had the claimed contact with the charging officer. Vega refused to say anything in his defense and Porter admitted that he had refused the order to produce his identification card, the infraction for which he was disciplined. Similarly, Semper and Primo confirmed the facts in the misbehavior reports. In the Corcoran and Nesmith cases, the issue was simple: the officers reported they had refused to stand for the morning count, and they said they had stood. It was for the fact finder to decide whether to credit the correction officers’ statements that they refused to stand.” (Vega, supra, at p. 140). The Court concluded that in such circumstances, the written reports were sufficiently relevant and probative to constitute substantial evidence supporting the determination that these inmates violated institutional rules. In the instant case, the misbehavior report, while signed by a correction officer, is not endorsed by any other employee (13). The report lists alleged violations of four inmate rules and regulations but fails to allege any violation of any rule which would prohibit postage stamps not attached to an envelope in the law library. Apparently, that rule is found in an unfiled local facility rulebook. Moreover, the inmate misbehavior report alleges that the incident took place in the “D Block lobby”. Nothing in the -21- record would indicate that any statewide rule or even local facility rule would prohibit the items which are the subject of the misbehavior report in D Block lobby. The allegation is that the stamps would be prohibited if not affixed to an envelope for mailing, in the law library. It is conceded that Mr. Bottom was on his way to the law library. Assuming arguendo, that the items he possessed would have been with him when he entered the law library, Appellant still submits that there was insufficient evidence to find a violation of inmate rule 113.22, authorized items in an unauthorized area. The fact finder in the instant case made a determination that the Appellant was credible when he stated he was unaware of the “local rule” that would have prohibited him from bringing postage stamps into the law library which were not affixed to an envelope for mailing. The hearing officer specifically found that this was an unintentional violation of the local rule. The hearing officer specifically found that: “... Inmate Bottom inadvertently carried the reported items en route to the law library .” (43). The evidence adduced at the disciplinary hearing clearly establishes: -22- 1. The postage stamps were only unauthorized in the law library unless affixed to an envelope by a local rule. 2. The inmate was unaware of the “local rule” until after the incident. And, 3. The violation of the statewide rule (113.22) was inadvertently, unintentional, and based on a rule unknown to the inmate. Pursuant to this Court’s holding in Vega, supra, Respondent failed to show a violation of the rule by substantial evidence. In the instant case, the terms of rule 113.22 (prohibiting otherwise authorized articles in unauthorized areas) would, in their ordinary meaning require an intentional act. In this case, intentionally bringing the stamps into the law library knowing that their authorization was limited to only stamps attached to an envelope for mailing. There was no such evidence in the instant case. In fact, the evidence clearly established that there was no intentional violation of the statewide rule and no knowledge of the local rule on which the violation is based. The possession of the two postage stamps as defined in their ordinary meaning, would fail to establish that Appellant violated the rule for which he was convicted (see Matter of Parker v. Kelly, 140 A D 2d 993, citing Matter of Duncan v. Perales, 133 A D 2d 1127). -23- CONCLUSION For the above stated reasons, Appellant respectfully requests that this Court grant the petition, order the challenged disciplinary proceeding nullified and expunge from all of his institutional records, and grant such other and further relief as to this Court may seem just and proper. DATED: August 5, 2014 Respectfully submitted, Warsaw, New York ANTHONY BOTTOM, Appellant By his attorney, ______________________________ NORMAN P. EFFMAN -24-