Opinion
2012-11-21
In the Matter of Howard SPIKES, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Howard Spikes, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Howard Spikes, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: LAHTINEN, J.P., SPAIN, MALONE JR., GARRY and EGAN JR., JJ.
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 violating the prison disciplinary rules prohibiting violent conduct, harassment, creating a disturbance and refusing a direct order. Following a tier III disciplinary hearing, he was found guilty of all charges and that determination was upheld upon his administrative appeal. This CPLR article 78 proceeding ensued.
Initially, the Attorney General concedes, and we agree, that the part of the determination finding petitioner guilty of creating a disturbance should be annulled and all references thereto expunged from petitioner's institutional record ( see Matter of Bilal v. Fischer, 92 A.D.3d 1046, 1046–1047, 938 N.Y.S.2d 363 [2012] ). Turning to the remaining charges, our review confirms that the detailedmisbehavior report, combined with the hearing testimony, provide substantial evidence supporting the determination finding petitioner guilty of violent conduct, harassment and disobeying a direct order ( see Matter of Harrison v. Prack, 87 A.D.3d 1221, 930 N.Y.S.2d 294 [2011];Matter of Crenshaw v. Fischer, 87 A.D.3d 1189, 1190, 929 N.Y.S.2d 346 [2011] ). Although petitioner denied the allegations in the report, this created a credibility issue for the Hearing Officer to resolve ( see Matter of Cruz v. Fischer, 94 A.D.3d 1296, 1297, 942 N.Y.S.2d 673 [2012] ).
Inasmuch as petitioner has served his administrative penalty and there was no recommended loss of good time, there is no need to remit this matter for a redetermination of the penalty imposed ( see Matter of Rodriguez v. Selsky, 50 A.D.3d 1337, 1337 n., 854 N.Y.S.2d 823 [2008] ).
Petitioner's various procedural arguments, including his claim that annulment is warranted because the misbehavior report was allegedly not authored in a timely fashion, have been examined and found to be without merit. Petitioner's challenge to the Hearing Officer's denial of a witness he claims would have aided his defense to the charge of creating a disturbance has been rendered academic due to the dismissal and expungement of that charge herein. Moreover, contrary to petitioner's assertion, the hearing transcript is sufficient to afford meaningful appellate review ( see Matter of Anthony v. Fischer, 81 A.D.3d 1027, 1028, 916 N.Y.S.2d 280 [2011] ).
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of creating a disturbance; petition granted to that extent and respondent is directed to expunge all references thereto from petitioner's institutional record; and, as so modified, confirmed.