| Matter of Saunders v Goord |
| 2008 NY Slip Op 02066 [49 AD3d 1000] |
| March 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Troy Saunders, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, 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 respondent which found petitionerguilty of violating certain prison disciplinary rules.
Petitioner was charged in two misbehavior reports with lewd conduct, smuggling, providingfalse statements, refusing a direct order, damaging state property and providing unauthorizedlegal assistance. The charges stemmed from petitioner exposing himself to a facility nurse duringa sick call and the statements made by and items confiscated from petitioner during the cellsearch that ensued. Following a tier III disciplinary hearing, petitioner was found guilty of allcharges and a penalty of 120 days in the special housing unit with a corresponding loss ofprivileges was imposed. Petitioner's administrative appeal proved unsuccessful, prompting himto commence this proceeding pursuant to CPLR article 78, subsequently transferred to this Court,to challenge respondent's determination.
Preliminarily, respondent concedes and the record reveals that there is insufficient evidenceto support the charges of smuggling and providing unauthorized legal assistance and,accordingly, the determination is modified to that extent. Inasmuch as the administrative penaltyhas been served and there was no recommended loss of good time, there is no need to remit thismatter for a redetermination of the penalty (see Matter of Wan Zhang v Murphy, 1 AD3d 784[*2][2003]).
Turning to the charge of lewd conduct, the misbehavior report, authored by the nurse whowitnessed the incident, is sufficient to support the finding of guilt (see Matter of Foster vCoughlin, 76 NY2d 964, 966 [1990]), and petitioner's denial of the underlying conductpresented a credibility issue for the Hearing Officer to resolve (see Matter of Callender v Selsky, 9AD3d 703 [2004]). Further, the misbehavior report charging petitioner with damaging stateproperty, providing false statements and refusing a direct order, authored by the correction officerwho issued the direct order and thereafter searched petitioner's cell, contained sufficient detail toboth apprise petitioner of the charges against him and sustain respondent's determination.
Petitioner's remaining contentions, including his assertions that he was denied theopportunity to call relevant witnesses and that the Hearing Officer was biased, have beenexamined and found to be lacking in merit.
Cardona, P.J., Peters, Lahtinen, Kane and Malone Jr., JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof smuggling and providing unauthorized legal assistance; petition granted to that extent andrespondent is directed to expunge all references thereto from petitioner's institutional record; and,as so modified, confirmed.