Bonnemere v. Fischer

110 A.D.3d 1281, 973 N.Y.S.2d 474

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 2013
• Status: Published

Opinion

Proceeding pursuant to CPLR 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.

Petitioner, a prison inmate, was charged in a misbehavior report with possession of a weapon, possession of alcohol and possession of a prohibited item. At the ensuing tier III disciplinary hearing, petitioner pleaded guilty to possession of a prohibited item, was found not guilty of possession of a weapon and was found guilty of the remaining charge of possession of alcohol. Petitioner thereafter commenced this CPLR article 78 proceeding solely challenging the determination of guilt as to the possession of alcohol charge. Upon review, respondent concedes, and we agree, that the determination finding petitioner guilty of possession of alcohol must be annulled and all references thereto expunged from petitioner’s institutional record. Notably, inasmuch the original penalty imposed included a recommended loss of good time, the matter must be remitted to respondent for a reassessment of the penalty relative to the remaining charge of possession of a prohibited item (see Matter of Platten v Bezio, 73 AD3d 1419, 1420 [2010]).

Lahtinen, J.P., McCarthy, Spain and Egan Jr., JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of possession of alcohol and imposed a penalty; petition granted to that extent, respondent is directed to expunge all references to this charge from petitioner’s institutional record, and matter remitted to respondent for an administrative redetermination of the penalty imposed on the remaining violation; and, as so modified, confirmed.