Opinion
2012-12-13
In the Matter of Jared HERNANDEZ, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Jared Hernandez, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Jared Hernandez, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, SPAIN, STEIN and McCARTHY, 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.
After a search disclosed various items of contraband in petitioner's cell, he was charged in a misbehavior report with possessing weapons and a tattoo machine. At the tier III disciplinary hearing that followed, petitioner pleaded guilty to possessing tattoo equipment and was found guilty of the weapons possession charge. While the penalty imposed was reduced upon administrative appeal, the determination was otherwise upheld, and this CPLR article 78 proceeding ensued.
Contrary to petitioner's contention, his plea of guilty to possessing tattoo equipment “precludes any challenge to that portion of the determination” (Matter of Spencer v. Goord, 38 A.D.3d 1028, 1028, 833 N.Y.S.2d 255 [2007],lv. denied9 N.Y.3d 802, 840 N.Y.S.2d 567, 872 N.E.2d 253 [2007];see Matter of Linnen v. Prack, 92 A.D.3d 986, 987, 937 N.Y.S.2d 701 [2012],lv. dismissed20 N.Y.3d 905, 2012 WL 5845624 [Nov. 20, 2012] ). As for the weapons possession charge, respondent correctly concedes that it must be annulled due to the unjustified refusal of correction officials to permit petitioner to observe the search of his cell ( see Matter of Morales v. Fischer, 89 A.D.3d 1346, 1347, 934 N.Y.S.2d 526 [2011] ). Inasmuch as a loss of good time was recommended as part of the penalty imposed, the matter must be remitted so that respondent may reassess the penalty upon the remaining violation ( see Matter of Linnen v. Prack, 92 A.D.3d at 987, 937 N.Y.S.2d 701;Matter of Dawes v. Venettozzi, 87 A.D.3d 1219, 1220, 929 N.Y.S.2d 771 [2011],lv. denied18 N.Y.3d 803, 938 N.Y.S.2d 861, 962 N.E.2d 286 [2012] ).
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of possessing weapons 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.