| Matter of Purcell v McKoy |
| 2008 NY Slip Op 06909 [54 AD3d 1113] |
| September 18, 2008 |
| Appellate Division, Third Department |
| In the Matter of Michael Purcell, Appellant, v Jeff McKoy, asSuperintendent of Hudson Correctional Facility, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Hummel, J.), entered December 18, 2007 inColumbia County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent Superintendent of Hudson CorrectionalFacility finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner, an inmate, discarded a portion of a burning cigarette into the trash can in his roomand it ignited some toilet paper, causing a fire. He was thereafter charged in a misbehavior reportwith violating prison disciplinary rules prohibiting inmates from starting fires (see 7NYCRR 270.2 [B] [19] [i]) or using flammable materials (see 7 NYCRR 270.2 [B] [19][iii]). At the ensuing tier II disciplinary hearing, petitioner pleaded guilty to both charges. Onadministrative appeal, petitioner asserted that he could not be guilty of arson because he did notintentionally set the fire. Respondent Superintendent of Hudson Correctional Facilitynevertheless affirmed the Hearing Officer's determination. Petitioner then commenced this CPLRarticle 78 proceeding and, following joinder of issue, Supreme Court dismissed the [*2]petition. This appeal ensued.
Initially, the Attorney General has advised that the part of the determination findingpetitioner guilty of violating 7 NYCRR 270.2 (B) (19) (i) by starting a fire has beenadministratively reversed and all references thereto have been expunged from petitioner'sinstitutional record. Therefore, his challenge to that part of the determination is moot (seeMatter of Moore v Goord, 307 AD2d 566, 566 [2003]). Given that petitioner has alreadyserved the penalty and no loss of good time was imposed, the matter need not be remitted for aredetermination of the penalty (see Matter of Baez v Goord, 261 AD2d 741, 742 [1999]).As for the remaining charge, petitioner's plea of guilty precludes him from challenging thesufficiency of the evidence supporting it (see Matter of Rivera v Goord, 47 AD3d 1141, 1141 [2008];Matter of Cendales v Goord, 305 AD2d 824, 824 [2003]). Petitioner's claim that theHearing Officer was biased is not substantiated by the record and there is no indication that thedetermination flowed from any alleged bias (see Matter of Witkowski v Goord, 45 AD3d 1068, 1069 [2007];Matter of Rodriguez v Herbert, 270 AD2d 889, 890 [2000]). Therefore, the petition wasproperly dismissed.
Cardona, P.J., Spain, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that thejudgment is modified, on the law, without costs, by reversing so much thereof as dismissed thatpart of the petition seeking to annul the determination finding petitioner guilty of starting a fire inviolation of 7 NYCRR 270.2 (B) (19) (i); petition granted to that extent, said portion of thedetermination annulled and respondent Superintendent of Hudson Correctional Facility isdirected to expunge all referenced thereto from petitioner's institutional record; and, as somodified, affirmed.