Dominic Edwards, Ogdensburg, 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 St. Lawrence County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found in possession of a brown leafy substance, and a correction officer subsequently determined that it was synthetic marihuana. As a result, petitioner was charged in a misbehavior report with possessing a narcotic, possessing contraband and smuggling. Following a tier III disciplinary hearing, petitioner was found guilty of possessing a narcotic and possessing contraband, but not guilty of smuggling. The determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.

Initially, respondent concedes, and we agree, that substantial evidence does not support petitioner's guilt as to the charge of possessing a narcotic. Accordingly, we annul that part of the determination, but need not remit the matter for a redetermination of the penalty given that petitioner has already served the penalty and no loss of good time was imposed (see Matter of Hobson v Prack, 127 AD3d 1370, 1371 [2015]; Matter of Ramos v Prack, 125 AD3d 1036, 1037 [2015], lv dismissed 25 NY3d 1039 [2015]). We reach a different conclusion with regard to that part of the determination finding petitioner guilty of possessing contraband, as petitioner's admission at the hearing that he had tobacco in his possession provides substantial evidence to support the determination of guilt as to that charge (see Matter of Garcia v Garner, 122 AD3d 988, 989 [2014]; Matter of Dozier v Selsky, 54 AD3d 1074, 1074 [2008]).

Finally, although the Hearing Officer had general knowledge of the incident, the record is devoid of evidence that he was involved in investigating the incident so as to require his [*2]recusal (see Matter of Bellinger v Venettozzi, 119 AD3d 1311, 1312 [2014]; Matter of Brooks v Unger, 110 AD3d 1122, 1122 [2013]).

McCarthy, J.P., Garry, Lynch and Devine, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of possessing a narcotic; petition granted to that extent and respondent is directed to expunge all references to this charge from petitioner's institutional record; and, as so modified, confirmed.

/NYOOpinion>

Matter of Baez v Bellnier

131 AD3d ?

Baez, Matter of, v Bellnier

131 AD3d ?

Bellnier, Matter of Baez v

131 AD3d ?

2015 NY Slip Op 06539

Matter of Baez v Bellnier131 AD3d ?

Baez, Matter of, v Bellnier

[—– NYS3d —–]

[*3]

In the Matter of Ronald Baez, Petitioner, v Joseph Bellnier, as Deputy Commissioner of Correctional Facilities et al., Respondents. Ronald Baez, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents. HEADNOTES Prisons and Prisoners Discipline of Inmates Attempting to Assault Staff and Engaging in Violent Conduct Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules. Based upon an investigation in which confidential information was received, correction officials learned that petitioner was involved in a plan to assault a correction officer. As a result, he was charged in a misbehavior report with attempting to assault staff and engaging in violent conduct. Petitioner was found guilty of the charges following a tier III disciplinary hearing, and the determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding followed. We confirm. The misbehavior report, testimony of the correction sergeant who conducted the investigation and confidential information considered by the Hearing Officer in camera provide substantial evidence supporting the determination of guilt (see Matter of Rossi v Fischer, 118 AD3d 1213, 1213 [2014]; Matter of Smythe v Fischer, 102 AD3d 1039, 1040 [2013]). Petitioner's remaining claims were not raised at the hearing and have not been preserved for our review (see Matter of Robinson v Annucci, 122 AD3d 981, 982 [2014]; Matter of Dizak v Prack, 120 AD3d 1472, 1473 [2014], lv denied 24 NY3d 916 [2015]). Garry, J.P., Egan Jr., Devine and Clark, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.