| Matter of Castillo v Goord |
| 2007 NY Slip Op 09847 [46 AD3d 1060] |
| December 13, 2007 |
| Appellate Division, Third Department |
| In the Matter of Bladimil Castillo, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Nancy A. Spiegel 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 respondent which found petitionerguilty of violating certain prison disciplinary rules.
Petitioner was charged in one misbehavior report with smuggling and conspiracy to possessdrugs and in a second misbehavior report with drug possession. Following a tier III disciplinaryhearing concerning both reports, petitioner was found guilty of all charges. The determinationwas upheld on administrative appeal and this CPLR article 78 proceeding ensued.
Initially, respondent concedes, and upon review of the record we agree, that the charges ofsmuggling and conspiracy to possess drugs are not supported by substantial evidence.Consequently, the determination of guilt must be annulled to that extent and all references theretoexpunged from petitioner's institutional record (see Matter of Williams v Goord, 28 AD3d 897, 898 [2006]). Onthe other hand, the part of the determination finding petitioner guilty of drug possession issupported by substantial evidence in the form of the second misbehavior report and the drug testdocumentation (see Matter of Torres vSelsky, 8 AD3d 775, 776 [2004]). However, inasmuch as the original penalty included arecommended loss of good time, the matter must be remitted to respondent for a reassessment ofthe penalty with respect to the remaining violation (see Matter of Arpa v David, 32 AD3d 1140, 1141 [2006]).[*2]
To the extent preserved, petitioner's remainingcontentions have been examined and found to be without merit.
Peters, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determinationis modified, without costs, by annulling so much thereof as found petitioner guilty of smugglingand conspiracy to possess drugs and imposed a penalty; petition granted to that extent,respondent is directed to expunge all references thereto from petitioner's institutional record, andmatter remitted to respondent for an administrative redetermination of the penalty imposed on theremaining violation; and, as so modified, confirmed.