Opinion
518974
05-14-2015
In the Matter of Paul KIM, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Paul Kim, Woodbourne, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Paul Kim, Woodbourne, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: LAHTINEN, J.P., GARRY, ROSE and CLARK, JJ.
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 which found petitioner guilty of violating certain prison disciplinary rules.
As the result of an investigation, correction officials allegedly obtained information that, over the course of a two-year period, petitioner had taken his Walkman and other items from his cell to his assigned college program outside the correctional facility and used a computer at the college to transfer his music onto the college's computer network. An investigator searched petitioner's cell and found petitioner's Walkman, altered audio cables and cassette tapes containing some of the songs that matched those on the college's computer network. Consequently, petitioner was charged in a misbehavior report with possessing an altered item, possessing contraband, smuggling and failing to comply with assigned program regulations. At the subsequent tier III disciplinary hearing, petitioner pleaded guilty to possessing an altered item. However, petitioner testified that he used the item for his radio in his cell and not for the purpose set forth by the investigator. At the conclusion of the hearing, he was found guilty of this charge as well as smuggling and possessing contraband, but not guilty of failing to comply with assigned program regulations. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
Initially, inasmuch as he pleaded guilty to possessing an altered item, petitioner is precluded from challenging the evidence supporting his guilt of this charge (see Matter of Fields v. Prack, 120 A.D.3d 1510, 1511, 992 N.Y.S.2d 458 [2014] ; Matter of Robinson v. Prack, 119 A.D.3d 1309, 1309, 989 N.Y.S.2d 707 [2014] ). Moreover, his admission to possessing altered audio cables, together with the misbehavior report and the testimony of its author, provide substantial evidence supporting petitioner's guilt of possessing contraband given that petitioner was not specifically authorized to possess such items (see Matter of Infantino v. Fischer, 116 A.D.3d 1305, 1305, 983 N.Y.S.2d 908 [2014] ; Matter of Hernandez v. Prack, 108 A.D.3d 965, 965, 969 N.Y.S.2d 242 [2013] ; see also 7 NYCRR 270.2 [B][14] [xiii] ).
We reach a different conclusion, however, with respect to the charge of smuggling. The Attorney General concedes, and we agree, that substantial evidence does not support petitioner's guilt of this charge (see 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] ; Matter of Castillo v. Goord, 46 A.D.3d 1060, 1060–1061, 847 N.Y.S.2d 290 [2007] ). Rather than reviewing the confidential information provided to the Inspector General's office and making independent assessments of reliability and credibility, the Hearing Officer inappropriately relied solely on unsupported testimony of the Inspector General's investigator (see Matter of Muller v. Fischer, 125 A.D.3d 1034, 1035, 1 N.Y.S.3d 585 [2015] ; Matter of Grate v. Annucci, 122 A.D.3d 1053, 1054, 994 N.Y.S.2d 746 [2014] ). Furthermore, the record is devoid of any evidence that petitioner engaged in smuggling his Walkman or the altered cables to copy music to and from the program's computers, or how this affected institutional safety and security. Accordingly, the finding of guilt with respect to the smuggling charge must be aned.
The confidential information is not contained within the record before us.
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As for the penalty imposed upon petitioner, because neither the charges of which he is guilty nor the evidence presented at the hearing establishes that petitioner's conduct was a threat to institutional safety and security, we find that the imposition of confinement in the special housing unit is harsh and excessive (compare Matter of Rogers v. Prack, 118 A.D.3d 1223, 1224–1225, 987 N.Y.S.2d 710 [2014], lv. granted 24 N.Y.3d 916, 2015 WL 652132 [2015] ; Matter of Thomassini v. Prack, 111 A.D.3d 1201, 1201–1202, 975 N.Y.S.2d 699 [2013] ; Matter of Serrano v. Goord, 266 A.D.2d 661, 662, 698 N.Y.S.2d 742 [1999], lv. denied 94 N.Y.2d 762, 707 N.Y.S.2d 622, 729 N.E.2d 341 [2000] ). However, inasmuch as no loss of good time was imposed and petitioner has already served the penalty, the matter need not be remitted (see Matter of Linares v. Fischer, 119 A.D.3d 1300, 1301, 989 N.Y.S.2d 703 [2014], lv. denied 24 N.Y.3d 909, 2014 WL 6433287 [2014] ; Matter of Brown v. New
York State Dept. of Corrections & Community Supervision, 119 A.D.3d 1205, 1206, 989 N.Y.S.2d 401 [2014] ). Lastly, we have considered petitioner's remaining contentions and find them to be unpersuasive.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of smuggling; petition granted to that extent and respondent is directed to expunge all references to this charge from petitioner's institutional record; and, as so modified, confirmed.