In the Matter of Leonza Watkins, Petitioner, v. Philip Coombe, Jr., as Acting Commissioner of New York State Department of Correctional Services, Respondent

—Determination unanimously annulled on the law without costs and petition granted. Memorandum: Based upon a misbehavior report written by a correction officer, petitioner was charged with a violation of inmate rule 106.10 (7 NYCRR 270.2 [B] [7] [i]; Refusal To Follow a Direct Order) and inmate rule 109.12 (7 NYCRR 270.2 [B] [10] [iii]; Inmate Movement). At his Tier II hearing, petitioner pleaded not guilty to both charges. The Hearing Officer found petitioner not guilty of a violation of inmate rule 109.12, but guilty of a violation of inmate rule 106.10. The Hearing Officer did not make an express finding that petitioner heard the order given but merely found that he should have heard it. "Absent a finding that petitioner heard the order, it could not be determined that he refused to obey it” (Matter of Midlarsky v Kelly, 145 AD2d 992, 993). The determination therefore must be annulled and all reference to the proceeding expunged from petitioner’s institutional record (see, Matter of Varela v Coughlin, 199 AD2d 1007, 1008; Matter of Midlarsky v Kelly, supra, at 993). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present—Green, J. P., Pine, Doerr, Boehm and Fallon, JJ.