Alicea v. Smith

50 A.D.3d 1404, 854 N.Y.S.2d 917

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 2008
• Status: Published

Opinion

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

Following a tier II disciplinary hearing, petitioner was found guilty of altering an electrical device and possessing an altered item. That determination was affirmed upon administrative appeal and this CFLR article 78 proceeding ensued.

Initially, the Attorney General concedes and we concur that the evidence is insufficient to sustain the charge of altering an electrical device. Accordingly, the underlying determination must be annulled to that extent. Remittal for a redetermination of the penalty imposed is unnecessary as no loss of good time was recommended and petitioner has already served the penalty imposed (see Matter of Gillard v Donohue, 48 AD3d 845, 846 [2008]). As for the remaining charge, we find that the misbehavior report, the testimony at the hearing and the item confiscated from petitioner’s cell provide substantial evidence to support the determination of guilt (see Matter of Warren v Goord, 34 AD3d 1144, 1144-1145 [2006]; Matter of Campisi v Goord, 23 AD3d 730, 731 [2005]). Petitioner’s remaining contentions have been reviewed and found to be without merit.

Peters, J.P, Carpinello, Rose, Kane and Stein, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of altering an electrical device; petition granted to that extent and respondent is directed to expunge all references thereto from petitioner’s institutional record; and, as so modified, confirmed.