Opinion
February 10, 1999
CPLR art. 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.
Present — Green, J. P., Pine, Wisner, Pigott, Jr., and Balio, JJ.
Determination unanimously modified on the law and as modified confirmed without costs in accordance with the following Memorandum: The determination finding petitioner guilty of violating inmate rule 180.17 ( 7 NYCRR 270.2 [B] [26] [vii]) by receiving compensation for legal services is supported by substantial evidence. The charge against petitioner was based upon a money order for $200 sent to petitioner by the wife of another inmate, accompanied by a letter thanking petitioner for his help and asking him to continue working on behalf of the other inmate. Petitioner did not dispute that he had provided legal assistance to the other inmate. The statements of petitioner and the other inmate that petitioner never requested compensation for that assistance and that the money order was intended as a friendly gesture presented a question of credibility that the Hearing Officer was entitled to resolve against petitioner ( see, Matter of Dickman v. Goord, 244 A.D.2d 825, 826).
Respondent concedes that the determination finding petitioner guilty of violating inmate rule 103.20 ( 7 NYCRR 270.2 [B] [4] [ii]) is not supported by substantial evidence. We therefore modify the determination and grant in part the petition by annulling the determination that petitioner violated inmate rule 103.20. Because the penalty has already been served and there was no recommended loss of good time, there is no need to remit the matter for reconsideration of the penalty imposed ( see, Matter of Contrera v. Coombe, 236 A.D.2d 661, 662-663).