Barto v. Berbary

Appellate Division of the Supreme Court of New York

Barto v. Berbary

2 A.D.3d 1328, 769 N.Y.S.2d 414, 2003 N.Y. App. Div. LEXIS 14277

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 31, 2003

StatusPublished

Cited by1 cases

This text of 2 A.D.3d 1328 (Barto v. Berbary) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barto v. Berbary, 2 A.D.3d 1328, 769 N.Y.S.2d 414, 2003 N.Y. App. Div. LEXIS 14277 (N.Y. Ct. App. 2003).

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Opinion

— CPLR article 78 proceeding transferred to this Court by an order of Supreme Court, Erie County (Pietruszka, J.), entered December 13, 2002, to review a determination of respondents after a Tier II hearing.

It is hereby ordered that the determination be and the same hereby is unanimously modified on the law by granting the petition in part and annulling that part of the determination finding that petitioner violated inmate rule 113.23 (7 NYCRR 270.2 [B] [14] [xiv]) and as modified the determination is confirmed without costs, and respondents are directed to expunge from petitioner’s institutional record all references thereto.

Memorandum: As respondents correctly concede, the determination finding that petitioner violated inmate rule 113.23 (7 NYCRR 270.2 [B] [14] [xiv]) is not supported by substantial evidence. However, the plea of guilty by petitioner to violating inmate rule 113.14 (7 NYCRR 270.2 [B] [14] [v]) precludes his present challenge to the sufficiency of the evidence supporting that charge (see Matter of Fuller v Goord, 299 AD2d 849 [2002], lv dismissed 100 NY2d 531 [2003]). We therefore modify the determination by granting the petition in part and annulling that part of the determination finding that petitioner violated inmate rule 113.23, and we direct respondents to expunge from petitioner’s institutional record all references thereto. Because the penalty has been served, there is no need to remit the matter to respondents for reconsideration of the penalty imposed (see Matter of Maybanks v Goord, 306 AD2d 839 [2003]). Finally, petitioner failed to exhaust his administrative remedies with respect to his contention that he was improperly confined to the special housing unit prior to the issuance of the misbehavior report (see Matter of Johnson v Ricks, 278 AD2d 559 [2000], lv denied 96 NY2d 710 [2001]). Present—Green, J.P., Scudder, Gorski, Lawton and Hayes, JJ.

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— CPLR article 78 proceeding transferred to this Court by an order of Supreme Court, Erie County (Pietruszka, J.), entered December 13, 2002, to review a determination of respondents after a Tier II hearing.

It is hereby ordered that the determination be and the same hereby is unanimously modified on the law by granting the petition in part and annulling that part of the determination finding that petitioner violated inmate rule 113.23 (7 NYCRR 270.2 [B] [14] [xiv]) and as modified the determination is confirmed without costs, and respondents are directed to expunge from petitioner’s institutional record all references thereto.

Memorandum: As respondents correctly concede, the determination finding that petitioner violated inmate rule 113.23 (7 NYCRR 270.2 [B] [14] [xiv]) is not supported by substantial evidence. However, the plea of guilty by petitioner to violating inmate rule 113.14 (7 NYCRR 270.2 [B] [14] [v]) precludes his present challenge to the sufficiency of the evidence supporting that charge (see Matter of Fuller v Goord, 299 AD2d 849 [2002], lv dismissed 100 NY2d 531 [2003]). We therefore modify the determination by granting the petition in part and annulling that part of the determination finding that petitioner violated inmate rule 113.23, and we direct respondents to expunge from petitioner’s institutional record all references thereto. Because the penalty has been served, there is no need to remit the matter to respondents for reconsideration of the penalty imposed (see Matter of Maybanks v Goord, 306 AD2d 839 [2003]). Finally, petitioner failed to exhaust his administrative remedies with respect to his contention that he was improperly confined to the special housing unit prior to the issuance of the misbehavior report (see Matter of Johnson v Ricks, 278 AD2d 559 [2000], lv denied 96 NY2d 710 [2001]). Present—Green, J.P., Scudder, Gorski, Lawton and Hayes, JJ.

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Bluebook (online)

2 A.D.3d 1328, 769 N.Y.S.2d 414, 2003 N.Y. App. Div. LEXIS 14277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barto-v-berbary-nyappdiv-2003.

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