| Matter of Covington v Smith |
| 2009 NY Slip Op 05216 [63 AD3d 1453] |
| June 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of Ronnie Covington, Petitioner, v Joseph T. Smith,as Superintendent of Shawangunk Correctional Facility, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Ulster County) to review a determination of respondent which found petitionerguilty of violating certain prison disciplinary rules.
Following an anonymous tip, petitioner was observed receiving medication in the prisoninfirmary, putting it in his mouth and, after pretending to swallow it, spitting it back out andsecreting it in the cuff of his pants. Petitioner was, thereafter, served with a misbehavior reportand, following a tier II disciplinary proceeding, was found guilty of the unauthorized possessionof medication, smuggling and refusing a direct order. After an unsuccessful administrativeappeal, petitioner commenced this CPLR article 78 proceeding to challenge the determination ofhis guilt.
Initially, we agree with respondent that the charge of refusing a direct order is not supportedby the record and that the administrative determination should be modified accordingly with allreferences thereto expunged from petitioner's institutional record (see Matter of Daum v Goord, 27 AD3d858, 858-859 [2006]). Because no loss of good time was imposed, we need not remit thematter to redetermine the penalty (see id.).[*2]
The misbehavior report, along with the testimony fromthe correction officer who authored the report and petitioner's admission that he was taking themedication back to his cell, constitute substantial evidence to support the determination of guiltwith respect to the remaining charges (see Matter of Wade v Artus, 59 AD3d 793, 794 [2009], appealdismissed — NY3d —, 2009 NY Slip Op 74519 [2009]; Matter of Hodge v Selsky, 53 AD3d953, 954 [2008]). Inasmuch as the determination of guilt resulted from the observation ofpetitioner's activities, rather than information contained in the anonymous note, we reject thecontention that the Hearing Officer erred in foreclosing the questioning of its author or otherwitnesses about its contents (see Matterof Parrilla v Selsky, 32 AD3d 1086, 1087 [2006], lv denied 8 NY3d 803[2007]).[FN*]Additionally, the record reveals that the hearing was conducted in a fair and impartial mannerand there is no evidence that the determination was a result of any alleged bias (see Matter ofChavis v Goord, 58 AD3d 954, 955 [2009]; Matter of Moss v Goord, 36 AD3d 977, 978 [2007]).
We have examined petitioner's remaining contentions and find them to be unpreserved orwithout merit.
Mercure, J.P., Spain, Lahtinen, Stein and Garry, JJ., concur. Adjudged that the determinationis modified, without costs, by annulling so much thereof as found petitioner guilty of refusing adirect order; petition granted to that extent and the Commissioner of Correctional Services isdirected to expunge all references thereto from petitioner's institutional record; and, as somodified, confirmed.
Footnote *: Insofar as petitioner attempts tochallenge the denial of his Freedom of Information Law request (see Public OfficersLaw § 87 [2] [f]), such challenge is foreclosed by his failure to timely appeal SupremeCourt's judgment sustaining respondent's denial in a separate CPLR article 78 proceeding.