Linnen v. Prack

92 A.D.3d 986, 937 N.Y.2d 701

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 2012
• Status: Published

Opinion

Initially we find no merit to petitioner’s claim that the hearing was not completed in a timely manner. Excluding the date that the misbehavior report was written (see Matter of Rush v Bezio, 79 AD3d 1548, 1549 [2010]), an extension was obtained within the required 14-day time period and the hearing was concluded within the additional time period granted by the extension (see 7 NYCRR 251-5.1 [b]; Matter of Ifill v Fischer, 72 AD3d 1367, 1368 [2010]). Turning to the merits, the Attorney General concedes, and we agree, that substantial evidence does not support that part of the determination finding petitioner guilty of making a false statement and providing unauthorized legal assistance (see Matter of Smith v Fischer, 87 AD3d 1198, 1199 [2011]; Matter of Gittens v New York State Dept. of Correctional Servs., 87 AD3d 1194,1195 [2011]). On the other hand, petitioner pleaded guilty to violating facility correspondence procedures and is precluded from challenging the determination with regard to this charge (see Matter of Lamere v Fischer, 87 AD3d 768, 768 [2011]; Matter of Brown v Fischer, 73 AD3d 1362, 1363 [2010]). Consequently, that part of the determination finding petitioner guilty of making a false statement and providing unauthorized legal assistance must be annulled and, because a loss of good time was imposed, the matter must be remitted to the Commissioner of Corrections and Community Supervision for a redetermination of the penalty (see Matter of Dawes v Venettozzi, 87 AD3d 1219, 1220 [2011], lv denied 18 NY3d 803 [2012]; Matter of Nimmons v Fischer, 85 AD3d 1460, 1461 [2011]). In view of our disposition, petitioner’s remaining contentions need not be addressed.

Mercure, A.EJ., Lahtinen, Spain, Kavanagh and Garry, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of making a false statement and providing unauthorized legal assistance and imposed a penalty; petition granted to that extent, the Commissioner of Corrections and Community Supervision is directed to expunge all references thereto from petitioner’s institutional record and matter remitted to the Commissioner for an administrative redetermination of the penalty on the remaining violation; and, as so modified, confirmed.