| Matter of Rodriguez v Selsky |
| 2008 NY Slip Op 01049 [48 AD3d 851] |
| February 7, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jonathan Rodriguez, Petitioner, v Donald Selsky,as Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff 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, a prison inmate, commenced this CPLR article 78 proceeding challenging a tier IIIdisciplinary determination finding him guilty of creating a disturbance and refusing a directorder.
To the extent that the petition can be construed as alleging that there is insufficient evidenceto support the determination of guilt, we find that the charge of creating a disturbance issupported by substantial evidence in the form of the misbehavior report and hearing testimonyfrom the correction officer who authored it (see Matter of Davis v Goord, 34 AD3d 1027, 1027 [2006]).Regarding the charge of refusing a direct order, on the other hand, the Attorney General concedesand our review of the record confirms that the requisite substantial evidence is lacking (seeMatter of Cliff v Vaughn, 275 AD2d 871, 871-872 [2000]). Thus, that part of thedetermination must be annulled and all references thereto expunged from petitioner's institutionalrecord (see Matter of Fernandez vGoord, 27 AD3d 806, 806 [2006]). Moreover, given that the penalty imposed included arecommended loss of good time for both charges, the matter must be [*2]remitted for a redetermination of the appropriate penalty relative tothe remaining charge of creating a disturbance (see id.).
We have examined petitioner's remaining claims that he was denied adequate employeeassistance, precluded from presenting witness testimony and deprived of an impartial hearing andfind them to be unavailing.
Cardona, P.J., Spain, Carpinello, Rose and Kavanagh, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof refusing a direct order; petition granted to that extent, the Commissioner of CorrectionalServices is directed to expunge all references thereto from petitioner's institutional record andmatter remitted to the Commissioner for an administrative redetermination of the penaltyimposed on the remaining violation; and, as so modified, confirmed.