| Matter of Wilson v Kadien |
| 2010 NY Slip Op 00359 [69 AD3d 1104] |
| January 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Keith Wilson, Petitioner, v Gregory J. Kadien, asSuperintendent of Gowanda Correctional Facility, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Arnold of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was observed having what appeared to be inappropriate sexual contact with hisfemale visitor. As a result, he was charged in a misbehavior report with violating visitingprocedures and engaging in a sexual offense. Petitioner pleaded guilty to the former charge andwas found guilty of the latter at the conclusion of a tier III disciplinary hearing. Thedetermination was later affirmed on administrative appeal, resulting in this CPLR article 78proceeding.
Initially, we note, and respondent concedes, that the finding that petitioner was guilty ofengaging in a sexual offense is not supported by substantial evidence in the record and that partof the determination must be annulled (see Matter of Belot v Selsky, 56 AD3d 911, 912 [2008]; Matter of Hodge v Selsky, 53 AD3d953, 954 [2008]). However, insofar as no loss of good time was imposed and petitioner hasalready served the penalty, the matter need not be remitted for a redetermination of the penalty(see Matter of Boyd v Goord, 50AD3d 1414 [2008]). As for the charge of violating [*2]visiting procedures, petitioner pleaded guilty to this charge and isprecluded from challenging the evidence upon which is it based (see Matter of Combes v Artus, 62AD3d 1134, 1135 [2009]; Matterof Wilson v Dubray, 54 AD3d 1089, 1090 [2008]).[FN*]Petitioner's remaining contentions have not been preserved for our review.
Spain, J.P., Rose, Stein, McCarthy and Garry, JJ., concur. Adjudged that the determination ismodified, without costs, by annulling so much thereof as found petitioner guilty of engaging in asexual offense; 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 *: It should be noted that while themisbehavior report referenced the incorrect rule violation, this error was corrected at thedisciplinary hearing and the misbehavior report was amended prior to petitioner's plea of guiltyto the amended charge.