Opinion
520078
11-05-2015
In the Matter of Walter BRANCH, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.
Walter Branch, Romulus, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
Walter Branch, Romulus, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
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 Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violent conduct and making threats. Initially, respondents concede, and we agree, that substantial evidence does not support the charge of violent conduct. Accordingly, we annul that part of the determination, but need not remit the matter for a redetermination of the penalty because the penalty has been completed and no loss of good time was imposed (see Matter of Hobson v. Prack, 127 A.D.3d 1370, 1371, 4 N.Y.S.3d 560 [2015] ). Turning to the remaining charge, the misbehavior report, letter written by petitioner and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Alston v. Goord, 25 A.D.3d 852, 852, 807 N.Y.S.2d 202 [2006] ). Contrary to petitioner's contention, statements in the letter could be viewed as threatening conduct which exceeds that sanctioned under Correction Law § 138(4) and which violated the disciplinary rule that prohibits making threats (see e.g. Matter of Cabassa v. Kuhlmann, 173 A.D.2d 973, 974, 569 N.Y.S.2d 824 [1991], lv. denied 78 N.Y.2d 858, 575 N.Y.S.2d 454, 580 N.E.2d 1057 [1991] ). Furthermore, we find no merit in petitioner's assertion that his 1st Amendment constitutional rights were violated (see Matter of Marhone v. LaValley, 107 A.D.3d 1186, 1187, 967 N.Y.S.2d 474 [2013] ; Matter of Koehl v. Fischer, 52 A.D.3d 1070, 1071, 861 N.Y.S.2d 154 [2008], appeal dismissed and lv. denied 11 N.Y.3d 809, 868 N.Y.S.2d 587, 897 N.E.2d 1070 [2008] ). Petitioner's remaining contentions are either unpreserved for our review or without merit.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of violent conduct; petition granted to that extent and respondent Commissioner of Corrections and Community Supervision is directed to expunge all references to this charge from petitioner's institutional record; and, as so modified, confirmed.
PETERS, P.J., McCARTHY, ROSE and CLARK, JJ., concur.