Wilson v. Kadien

69 A.D.3d 1104, 891 N.Y.2d 672

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 2010
• Status: Published

Opinion

Petitioner was observed having what appeared to be inappropriate sexual contact with his female visitor. As a result, he was charged in a misbehavior report with violating visiting procedures and engaging in a sexual offense. Petitioner pleaded guilty to the former charge and was found guilty of the latter at the conclusion of a tier III disciplinary hearing. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

Initially, we note, and respondent concedes, that the finding that petitioner was guilty of engaging in a sexual offense is not supported by substantial evidence in the record and that part of the determination must be annulled (see Matter of Belot v Selsky, 56 AD3d 911, 912 [2008]; Matter of Hodge v Selsky, 53 AD3d 953, 954 [2008]). However, insofar as no loss of good time was imposed and petitioner has already served the penalty, the matter need not be remitted for a redetermination of the penalty (see Matter of Boyd v Goord, 50 AD3d 1414 [2008]). As for the charge of violating visiting procedures, petitioner pleaded guilty to this charge and is precluded from challenging the evidence upon which is it based (see Matter of Combes v Artus, 62 AD3d 1134, 1135 [2009]; Matter of Wilson v Dubray, 54 AD3d 1089, 1090 [2008]).

* Petitioner’s remaining contentions have not been preserved for our review.

Spain, J.E, Rose, Stein, McCarthy and Garry, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of engaging in a sexual offense; petition granted to that extent and the Commissioner of Correctional Services is directed to expunge all references thereto from petitioner’s institutional record; and, as so modified, confirmed.

It should be noted that while the misbehavior report referenced the incorrect rule violation, this error was corrected at the disciplinary hearing and the misbehavior report was amended prior to petitioner’s plea of guilty to the amended charge.