| Matter of Alicea v Smith |
| 2008 NY Slip Op 03531 [50 AD3d 1404] |
| April 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Ralph Alicea, Petitioner, v Joseph T. Smith, asSuperintendent of Shawangunk Correctional Facility, 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.
Following a tier II disciplinary hearing, petitioner was found guilty of altering an electricaldevice and possessing an altered item. That determination was affirmed upon administrativeappeal and this CPLR article 78 proceeding ensued.
Initially, the Attorney General concedes and we concur that the evidence is insufficient tosustain the charge of altering an electrical device. Accordingly, the underlying determinationmust be annulled to that extent. Remittal for a redetermination of the penalty imposed isunnecessary as no loss of good time was recommended and petitioner has already served thepenalty imposed (see Matter of Gillard vDonohue, 48 AD3d 845, 846 [2008]). As for the remaining charge, we find that themisbehavior report, the testimony at the hearing and the item confiscated from petitioner's cellprovide substantial evidence to support the determination of guilt (see Matter of Warren v Goord, 34AD3d 1144, 1144-1145 [2006]; Matter of Campisi v Goord, 23 AD3d 730, 731 [2005]). Petitioner'sremaining contentions have been reviewed and found to be without merit.
Peters, J.P., Carpinello, Rose, Kane and Stein, JJ., concur. Adjudged that the determination ismodified, without costs, by annulling so much thereof as found petitioner guilty of altering anelectrical device; petition granted to that extent and respondent is directed to expunge allreferences thereto from petitioner's institutional record; and, as so modified, confirmed.