Opinion
527688
11-07-2019
In the Matter of Tyrone PETERS, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Tyrone Peters, Pine City, petitioner pro se. Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Tyrone Peters, Pine City, petitioner pro se.
Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Garry, P.J., Clark, Mulvey and Aarons, JJ.
MEMORANDUM AND JUDGMENT 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 finding petitioner guilty of violating certain prison disciplinary rules.
While a female correction officer was performing her duties, petitioner approached her and told her that he knew her first name. He then told her that his wife, who was an attorney, looked her up and obtained personal information about the officer, including her address. When the officer directed petitioner to lock in to his cell, he told her that his wife was not finished getting information about her. These comments made the officer uncomfortable, and she wrote a misbehavior report charging petitioner with harassment, making threats, refusing a direct order, interfering with an employee, possessing employee information and stalking. Following a tier III disciplinary hearing, he was found guilty of all charges except for possessing employee information and stalking. The determination was later affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.
Petitioner asserts that the determination of guilt is not supported by substantial evidence. Respondent concedes and, upon reviewing the record, we agree that that part of the determination finding petitioner guilty of refusing a direct order and interfering with an employee is not supported by substantial evidence (see Matter of Baxter v. Annucci, 173 A.D.3d 1547, 1548, 103 N.Y.S.3d 635 [2019] ; Matter of White v. Annucci, 169 A.D.3d 1326, 1327, 95 N.Y.S.3d 395 [2019], lv dismissed 33 N.Y.3d 1048, 103 N.Y.S.3d 21, 126 N.E.3d 1061 [2019], lv denied 33 N.Y.3d 908, 2019 WL 2461615 [2019] ). However, given that petitioner has already served the penalty and no loss of good time was imposed, the matter need not be remitted for a redetermination of the penalty on the remaining charges (see Matter of Baxter v. Annucci, 173 A.D.3d at 1548, 103 N.Y.S.3d 635 ; Matter of Martin v. Rodriguez, 171 A.D.3d 1322, 1322–1323, 95 N.Y.S.3d 909 [2019] ). Contrary to petitioner's claim, that part of the determination finding petitioner guilty of making threats and engaging in harassment is supported by substantial evidence consisting of the detailed misbehavior report and the testimony of its author (see Matter of Lewis v. Fischer, 112 A.D.3d 1194, 1195, 976 N.Y.S.2d 629 [2013] ; Matter of Wahhab v. Fischer, 77 A.D.3d 996, 997, 908 N.Y.S.2d 753 [2010] ). We have considered petitioner's remaining claims and find them to be unavailing.
Garry, P.J., Clark, Mulvey and Aarons, JJ., concur.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of refusing a direct order and interfering with an employee; petition granted to that extent and respondent is directed to expunge all references to these charges from petitioner's institutional record; and, as so modified, confirmed.