Talbot v. Goord

257 A.D.2d 954, 683 N.Y.S.2d 442, 1999 N.Y. App. Div. LEXIS 748

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, challenges the administrative determination finding him guilty of smuggling, property loss or damage and failing to abide by facility correspondence procedures in violation of various prison disciplinary rules. Initially, the Attorney General concedes, and our review of the record confirms, that there is insufficient evidence to support the charges of smuggling and property loss or damage. Accordingly, those charges must be annulled and all references thereto expunged from petitioner’s institutional record. With respect to the charge of violating facility correspondence procedures, we need note only that petitioner pleaded guilty to such charge and, hence, is precluded from challenging it on substantial evidence grounds (see, Matter of Sparks v Coombe, 243 AD2d 767, 768).

Mikoll, J. P., Mercure, Crew III, Spain and Carpinello, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of smuggling and property loss or damage; petition granted to that extent, and respondents are directed to expunge all references thereto from petitioner’s institutional record and matter remitted to respondents for an administrative redetermination of the penalty imposed; and, as so modified, confirmed.