Opinion
523038.
10-26-2017
In the Matter of Carlos RODRIGUEZ, Appellant, v. Nancy J. HEYWOOD, as Deputy Counsel and FOIL Appeals Officer of the Department of Corrections and Community Supervision, et al., Respondents.
Carlos Rodriguez, Wallkill, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondents.
Carlos Rodriguez, Wallkill, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondents.
Before: PETERS, P.J., EGAN JR., DEVINE, MULVEY and PRITZKER, JJ.
PRITZKER, J.
Appeal from a judgment of the Supreme Court (Hard, J.), entered April 25, 2016 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to, among other things, partially expunge petitioner's prison disciplinary record.
In March 1999, petitioner was convicted, upon a jury verdict, of murder in the second degree for stabbing a fellow inmate while serving time at Sing Sing Correctional Facility ( People v. Rodriguez, 33 A.D.3d 730, 730, 826 N.Y.S.2d 271 [2006], lv. denied 9 N.Y.3d 850, 840 N.Y.S.2d 776, 872 N.E.2d 889 [2007] ). In conjunction therewith, petitioner was charged in a misbehavior report with committing an offense under the Penal Law. Following a tier III disciplinary hearing, petitioner was found guilty of that offense in March 1999 and received a penalty of, among other things, nine years in the special housing unit ( Matter of Rodriguez v. Director of Special Hous. & Inmate Disciplinary Programs, 71 A.D.3d 1346, 1347, 897 N.Y.S.2d 311 [2010], lv. denied 15 N.Y.3d 702, 2010 WL 2521370 [2010], cert. denied 562 U.S. 940, 131 S.Ct. 354, 178 L.Ed.2d 229 [2010] ). On appeal, the Second Department modified the judgment by reducing the conviction from murder in the second degree to manslaughter in the second degree ( People v. Rodriguez, 33 A.D.3d at 732, 826 N.Y.S.2d 271 ). Petitioner thereafter commenced a proceeding seeking, among other thing, reconsideration of his March 1999 disciplinary determination. Supreme Court (Ceresia Jr., J.) dismissed the petition, and this Court affirmed ( Matter of Rodriguez v. Director of Special Hous. & Inmate Disciplinary Programs, 71 A.D.3d at 1347–1348, 897 N.Y.S.2d 311 ).
In August 2014, petitioner made a request pursuant to the Freedom of Information Law (see Public Officers Law art 6) for access to and, to the extent necessary, correction of his disciplinary record maintained by the Department of Corrections and Community Supervision (hereinafter DOCCS) relative to the March 1999 disciplinary determination. Dissatisfied with DOCCS's response to his request, petitioner commenced the instant CPLR article 78 proceeding seeking similar relief. After receiving the requested records, petitioner amended his petition, seeking, among other things, to compel DOCCS to expunge his disciplinary record relative to the March 1999 disciplinary determination. Supreme Court (Hard, J.) dismissed petitioner's application in its entirety, finding that even though petitioner's judgment of conviction was modified, he still committed a penal offense as referenced in the March 1999 misbehavior report and, therefore, he was not entitled to expungement of the disciplinary record relative to this incident. Petitioner appeals.
In support of his contention that his disciplinary record relative to the March 1999 disciplinary determination must be expunged as it does not accurately reflect the crime for which he was ultimately convicted, petitioner cites to Matter of Brown v. Goord , 19 A.D.3d 773, 796 N.Y.S.2d 439 (2005) and Matter of Proctor v. Goord , 10 Misc.3d 229, 801 N.Y.S.2d 517 (Sup.Ct., Albany County 2005). Petitioner's reliance upon these cases is misplaced. Expungement was warranted in those cases because the records at issue contained references to crimes for which the petitioner had been charged but not convicted (Matter of Brown v. Goord, 19 A.D.3d at 775, 796 N.Y.S.2d 439 ) and to a disciplinary determination that was administratively reversed and expunged (Matter of Proctor v. Goord, 10 Misc.3d at 230, 801 N.Y.S.2d 517 ). While petitioner is entitled to have his disciplinary record accurately reflect the modification of his judgment of conviction (see 7 NYCRR 5.51 [b] ), neither case upon which petitioner relies supports his argument that the disciplinary record relative to the March 1999 incident in its entirety must be expunged.
For any Penal Law offense, "departmental sanctions may be imposed based upon a criminal conviction" ( 7 NYCRR 270.2 [A] ). "[DOCCS] has a strong penological interest in having the ability not only to conduct a disciplinary proceeding and impose a penalty for violation of disciplinary rules, but also to modify that penalty in light of a subsequent criminal conviction" (Matter of Josey v. Goord, 9 N.Y.3d 386, 391, 849 N.Y.S.2d 497, 880 N.E.2d 18 [2007] ). Here, DOCCS reasonably "interpreted the regulation at issue to permit the imposition of sanctions based upon a conviction of any crime" (Matter of Sierra v. Annucci, 145 A.D.3d 1496, 1498, 44 N.Y.S.3d 827 [2016] ; see generally 7 NYCRR 270.2 [A] ). As the " ‘construction adopted by [the agency] is not irrational, it should be sustained’ " (Matter of Sierra v. Annucci, 145 A.D.3d at 1499, 44 N.Y.S.3d 827, quoting Matter of Hop Wah v. Coughlin, 160 A.D.2d 1054, 1056, 553 N.Y.S.2d 886 [1990], lv. denied 76 N.Y.2d 708, 560 N.Y.S.2d 990, 561 N.E.2d 890 [1990] ). Therefore, insofar as petitioner's conviction, as modified, still constituted a penal offense, the determination denying expungement of petitioner's entire disciplinary record relative to the March 1999 disciplinary determination is not irrational (see Matter of Blake v. Mann, 75 N.Y.2d 742, 743, 551 N.Y.S.2d 888, 551 N.E.2d 89 [1989] ; Matter of Sierra v. Annucci, 145 A.D.3d at 1499, 44 N.Y.S.3d 827 ). Petitioner's remaining arguments have been examined and found to lack merit.
ORDERED that the judgment is affirmed, without costs.
PETERS, P.J., EGAN JR., DEVINE and MULVEY, JJ., concur.