Opinion
525699
04-12-2018
In the Matter of Angel MALDONADO, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Angel Maldonado, Stormville, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Angel Maldonado, Stormville, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: McCarthy, J.P., Lynch, Devine, Clark and Rumsey, JJ.
MEMORANDUM AND JUDGMENTProceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with smuggling, possessing unauthorized medication and exchanging a narcotic. According to the report, petitioner was observed passing a bag of pills to a fellow inmate. When a correction officer questioned the inmates, the other inmate threw the bag on the floor and it was recovered by the officer. The pills were later identified by a facility nurse as the prescription medication neurontin. Following a tier III disciplinary hearing, petitioner was found guilty as charged. This determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.
Initially, the Attorney General concedes, and we agree, that substantial evidence does not support that part of the determination finding petitioner guilty of exchanging a narcotic. Accordingly, we annul that part of the determination and, given that petitioner has already served the penalty, which did not include a loss of good time, the matter need not be remitted for a redetermination thereof (see Matter of Dushain v. Annucci, 152 A.D.3d 1120, 1121, 56 N.Y.S.3d 486 [2017] ; Matter of McBride v. Annucci, 142 A.D.3d 1218, 1219, 37 N.Y.S.3d 638 [2016] ).
As to the remaining charges, the misbehavior report and hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Muhammad v. Gonyea, 156 A.D.3d 1068, 1069, 65 N.Y.S.3d 466 [2017] ; Matter of Taylor v. Lee, 152 A.D.3d 1125, 1126, 59 N.Y.S.3d 835 [2017] ). The different account of the incident offered by petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of King v. Annucci, 155 A.D.3d 1145, 1145, 62 N.Y.S.3d 831 [2017] ; Matter of Tigner v. Annucci, 147 A.D.3d 1138, 1139, 45 N.Y.S.3d 821 [2017] ).
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of exchanging a narcotic; petition granted to that extent and the 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.
McCarthy, J.P., Lynch, Devine, Clark and Rumsey, JJ., concur.