Opinion
526794
04-18-2019
In the Matter of Samuel SMALL, Petitioner, v. STATE of New York, Respondent.
Samuel Small, Attica, petitioner pro se. Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Samuel Small, Attica, petitioner pro se.
Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Aarons, Rumsey and Pritzker, 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 commenced this CPLR article 78 proceeding challenging a tier III determination finding him guilty of violating certain prison disciplinary rules. The Attorney General has advised this Court that the determination has been administratively reversed, all references thereto have been expunged from petitioner's institutional record and the mandatory $5 surcharge has been refunded to petitioner's inmate account. To the extent that petitioner seeks to be restored to the status that he enjoyed prior to the disciplinary determination, he is not entitled to such relief (see Matter of Boeck v. Annucci, 165 A.D.3d 1334, 1334, 82 N.Y.S.3d 748 [2018] ; Matter of Herbert v. Venettozzi, 162 A.D.3d 1454, 1455, 75 N.Y.S.3d 920 [2018] ). However, the record establishes that the penalty imposed included a six-month loss of good time, and, although not referenced by the Attorney General's letters, "the loss of ... good time incurred by petitioner as a result of the determination should be restored" ( Matter of Chavez v. Annucci, 168 A.D.3d 1332, 1332, 90 N.Y.S.3d 917 [2019] ). As petitioner otherwise has obtained all of the relief to which he is entitled, the petition must be dismissed as moot (see Matter of Ortiz v. Venettozzi, 167 A.D.3d 1200, 1201, 87 N.Y.S.3d 909 [2018] ; Matter of Adams v. Annucci , 167 A.D.3d 1125, 1126, 87 N.Y.S.3d 522 [2018] ).
Garry, P.J., Egan Jr., Aarons, Rumsey and Pritzker, JJ., concur.
ADJUDGED that the petition is dismissed, as moot, without costs.