Opinion
2011-11-23
In the Matter of Billy COOPER, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and COMMUNITY SUPERVISION, Respondent.
Billy Cooper, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Billy Cooper, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, J.P., ROSE, MALONE JR., McCARTHY and EGAN JR., JJ.
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.
A correction officer caught an inmate in the mess hall attempting to smuggle tobacco and found in that inmate's possession a letter setting forth prices and amounts, including information on how to contact the inmate responsible for delivering the contraband, who was identified by an alias. Following an investigation, it was determined that the inmate with the alias was petitioner and that he had in his cell an order form for a certain type of blades. As a result, petitioner was charged in a misbehavior report with smuggling and possessing contraband. It was later discovered that petitioner had sewn a pouch into the groin area of his boxer shorts and he was charged in a second misbehavior report with possessing an altered item. Following a tier III disciplinary hearing, petitioner was found guilty of the charges contained in both reports. The determination was later affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.
Initially, given that petitioner pleaded guilty to possessing an altered item, he is precluded from challenging that part of the determination finding him guilty of this charge ( see Matter of Smith v. Fischer, 85 A.D.3d 1481, 1482, 926 N.Y.S.2d 209 [2011]; Matter of Kae v. Bezio, 79 A.D.3d 1496, 1497, 913 N.Y.S.2d 409 [2010] ). We reach a different conclusion , however, with respect to the charges contained in the first misbehavior report inasmuch as respondent concedes that substantial evidence does not support that part of the determination finding petitioner guilty of such charges ( see Matter of Joseph v. Fischer, 85 A.D.3d 1514, 1515, 925 N.Y.S.2d 917 [2011]; Matter of Sierra v. Fischer, 82 A.D.3d 1436, 1437, 918 N.Y.S.2d 682 [2011] ). Accordingly, that part of the determination must be annulled. Insofar as a loss of good time was imposed, the matter must be remitted to respondent for a redetermination of the penalty on the remaining charge ( see Matter of Correnti v. Fischer, 83 A.D.3d 1354, 1355, 921 N.Y.S.2d 720 [2011]; Matter of Minton v. Fischer, 73 A.D.3d 1347, 1348, 899 N.Y.S.2d 916 [2010], appeal dismissed 15 N.Y.3d 848, 909 N.Y.S.2d 24, 935 N.E.2d 816 [2010] ). In view of our disposition, we need not address petitioner's remaining contentions.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of smuggling and possession of contraband and imposed a penalty; petition granted to that extent, respondent is directed to expunge all references thereto 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.