| Matter of Boyd v Goord |
| 2008 NY Slip Op 03538 [50 AD3d 1414] |
| April 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Andre Boyd, 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 Clinton County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with disobeying a direct order, interferingwith an employee and violating urinalysis testing procedures. At the conclusion of the ensuingtier III disciplinary hearing, petitioner was found guilty of all charges. That determination wasaffirmed upon administrative appeal, prompting petitioner to commence this CPLR article 78proceeding seeking annulment.
The misbehavior report, together with testimony—including that ofpetitioner—adduced at the hearing, provide substantial evidence to support those portionsof the determination finding petitioner guilty of disobeying a direct order and interfering with anemployee (see Matter of Tafari vSelsky, 45 AD3d 1139, 1139 [2007]). However, as respondent concedes, and we alsofind, the charge of violating urinalysis testing procedures is not supported by the requisitesubstantial evidence and, thus, the determination must be annulled to that extent and allreferences thereto expunged from petitioner's institutional record (see Matter of Williams v Goord, 28AD3d 897, 898 [2006]; Matter of Gittens v Goord, 249 AD2d 622, 622 [1998]).Remittal for a redetermination of the penalty is not necessary, however, inasmuch as no loss ofgood time was imposed and petitioner has already served the penalty (see Matter of Green v [*2]Smith, 40 AD3d 1287, 1287 [2007]). We have examinedpetitioner's remaining contentions and find them to be unavailing.
Peters, J.P., Spain, Lahtinen, Kane and Stein, JJ., concur. Adjudged that the determination ismodified, without costs, by annulling so much thereof as found petitioner guilty of violatingurinalysis testing procedures; petition granted to that extent and respondent is directed toexpunge all references thereto from petitioner's institutional record; and, as so modified,confirmed.