Opinion
2014-07-31
In the Matter of Jorge L. LINARES, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Jorge L. Linares, Rome, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Jorge L. Linares, Rome, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., STEIN, GARRY, EGAN JR. and CLARK, 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.
Correction officials discovered that petitioner received a package and had given some of its contents to another inmate. They found such items in the locker belonging to the other inmate and learned that the package had been sent to petitioner by the other inmate's mother. As a result, petitioner was charged in a misbehavior report with engaging in an unauthorized exchange, smuggling and violating package room procedures. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Initially, respondent concedes and we agree that the determination finding petitioner guilty of violating package room procedures is not supported by substantial evidence. Although the determination must be annulled to this extent, the matter need not be remitted for a reassessment of the penalty given that no loss of good time was imposed and petitioner has already served the penalty ( see Matter of Madden v. Griffin, 109 A.D.3d 1060, 1061, 971 N.Y.S.2d 586 [2013],lv. denied22 N.Y.3d 860, 2014 WL 223746 [2014];Matter of Hinton v. Fischer, 108 A.D.3d 1000, 1001, 969 N.Y.S.2d 258 [2013] ).
We find no reason to disturb the determination with respect to the remaining charges. Petitioner admitted that he received a package from another inmate's mother and gave a portion of the contents to the inmate to keep in his locker until petitioner had room in his own. His testimony was consistent with the testimony of the other inmate, the inmate's mother and the sergeant who wrote the misbehavior report, all of which, together with the detailed misbehavior report, provide substantial evidence supporting petitioner's guilt of the charges of smuggling and engaging in an unauthorized exchange ( see Matter of Cruz v. Walsh, 87 A.D.3d 1234, 1234–1235, 930 N.Y.S.2d 298 [2011];Matter of Mendez v. Goord, 21 A.D.3d 1191, 1191–1192, 800 N.Y.S.2d 858 [2005];Matter of Miller v. Portuondo, 269 A.D.2d 646, 646, 704 N.Y.S.2d 175 [2000] ). Contrary to petitioner's claim, we find nothing to indicate that the Hearing Officer was biased or that the determination flowed from any alleged bias ( see Matter of Guillory v. Fischer, 111 A.D.3d 1005, 1005–1006, 974 N.Y.S.2d 196 [2013];Matter of Fero v. Prack, 108 A.D.3d 1004, 1005, 968 N.Y.S.2d 918 [2013] ). Petitioner's remaining contentions are either unpreserved or without merit.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of violating package room procedures; 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.