Opinion
2014-04-17
In the Matter of Eric PAGE, Petitioner, v. William LEE, as Superintendent of Green Haven Correctional Facility, Respondent.
Eric Page, Stormville, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Eric Page, Stormville, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
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.
Petitioner was charged in a misbehavior report with refusing a direct order and failing to comply with the guidelines and instructions of the Family Reunion Program (hereinafter FRP) at the conclusion of his visit. Specifically, the misbehavior report relates that, contrary to the FRP rules that petitioner had signed, not all of the garbage had been thrown out at the time of departure nor was the inside of the refrigerator cleaned satisfactorily. Following a tier II disciplinary hearing, petitioner was found guilty of both charges. That determination was subsequently affirmed on administrative appeal, prompting this CPLR article 78 proceeding.
Initially, respondent concedes, and we agree, that substantial evidence does not support that part of the determination finding petitioner guilty of disobeying a direct order. The determination must be annulled to that extent; the matter need not be remitted for reassessment of the penalty as no loss of good time was imposed ( 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] ).
As to the remaining charge, the misbehavior report, the FRP clean up rules signed by petitioner and petitioner's testimony at the hearing provide substantial evidence to support the determination of guilt ( see Matter of Santiago v. Coombe, 233 A.D.2d 634, 635, 649 N.Y.S.2d 843 [1996] ). Furthermore, we are unpersuaded by petitioner's contention that he was unaware that disciplinary sanctions could be imposed for violating the FRP clean up rules. Petitioner's remaining contentions are without merit.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of disobeying a direct order; petition granted to that extent and respondent is directed to expunge all references thereto from petitioner's institutional record; and, as so modified, confirmed. PETERS, P.J., STEIN, McCARTHY and ROSE, JJ., concur.