| Matter of Gillard v Donohue |
| 2008 NY Slip Op 01042 [48 AD3d 845] |
| February 7, 2008 |
| Appellate Division, Third Department |
| In the Matter of Gary Gillard, Petitioner, v Richard A. Donohue, asHearing Officer, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Treasure of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Chemung County) to review a determination of respondent Superintendent ofSouthport Correctional Facility which found petitioner guilty of violating certain prisondisciplinary rules.
After petitioner wrote two letters to the facility medical department which, among otherthings, advised that he was on a hunger strike, a search of his cell revealed that numerous candybars and bags of hard candy that he had purchased from the commissary were missing. As aresult, he was charged in a misbehavior report with interference with an employee, unauthorizedexchange and lying. A tier II disciplinary hearing ensued, at the conclusion of which petitionerwas found guilty of all charges. That determination was affirmed upon administrative appeal,prompting petitioner to commence this CPLR article 78 proceeding.
Initially, the Attorney General concedes and we concur that the evidence presented at thehearing is insufficient to support the charges of interference with an employee and unauthorizedexchange and, accordingly, the underlying determination must be annulled to that extent (see Matter of Rizzuto v Goord, 36AD3d 1124, 1124 [2007]). Remittal for a redetermination of the penalty is not necessary,however, inasmuch as no loss of good time was imposed and it appears that petitioner hasalready served the penalty of 30 days in keeplock (see Matter of Ricco v Goord, 4 AD3d 707, 707 [2004], lvdenied 2 NY3d 707 [2004]). Turning to [*2]the charge oflying, we find that it is supported by the requisite substantial evidence in the form of themisbehavior report and the subject letters which petitioner admitted to authoring (see Matter of Robinson v Selsky, 43AD3d 529, 530 [2007]). We have reviewed petitioner's remaining claims and find them tobe unavailing.
Cardona, P.J., Peters, Rose, Kane and Malone Jr., JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof interference with an employee and unauthorized exchange; petition granted to that extent andrespondent Superintendent of Southport Correctional Facility is directed to expunge allreferences thereto from petitioner's institutional record; and, as so modified, confirmed.