| Matter of Quinones v Fischer |
| 2008 NY Slip Op 08235 [55 AD3d 1200] |
| October 30, 2008 |
| Appellate Division, Third Department |
| In the Matter of Sabu Quinones, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court,entered in Albany County) to review a determination of the Superintendent of Mid-OrangeCorrectional Facility which found petitioner guilty of violating certain prison disciplinary rules.
When petitioner's wife came to visit petitioner in the visiting room of the correctional facility wherehe was housed, correction officers observed him excessively kissing her and groping her breasts. As aresult, he was charged in a misbehavior report with refusing a direct order and violating visiting roomprocedures. Following a tier II disciplinary hearing, petitioner was found guilty of the charges and thedetermination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Initially, the Attorney General concedes and we agree that, upon reviewing the record, substantialevidence does not support that part of the determination finding petitioner guilty of refusing a directorder (see Matter of Torres v Fischer,53 AD3d 1008 [2008]; Matter ofRodriguez v Selsky, 48 AD3d 851, 852 [2008]). Nonetheless, inasmuch as no loss of goodtime was imposed and petitioner has already served the penalty, the matter need not be remitted for areassessment of the penalty (see Matter ofGreen v Smith, 40 AD3d 1287, 1287 [2007]; Matter of Deoleo v Selsky, 29 AD3d 1102, 1104 [2006]).[*2]
As for that part of the determination finding petitioner guilty ofviolating facility visiting procedures, the misbehavior report and testimony of the correction officer whoendorsed it establish that petitioner engaged in prolonged kissing and groping of his wife's breasts whichis not permitted by the regulations (see 7 NYCRR 200.4 [k] [2]). Petitioner's denial of suchconduct presented a credibility issue for the Hearing Officer to resolve (see Matter of Retamozzo v New York StateDept. of Correctional Servs., 31 AD3d 1083, 1084 [2006]). Accordingly, substantialevidence supports the determination in this regard (see Matter of Garcia v Goord, 261 AD2d674 [1999], lv and appeal dismissed 94 NY2d 834 [1999]).
Petitioner's claim of hearing officer bias has not been preserved for our review inasmuch as he didnot raise it in his administrative appeal (seeMatter of Holmes v Brown, 43 AD3d 1234, 1235 [2007], lv denied 9 NY3d 815[2007]).
Peters, J.P., Spain, Lahtinen, Kavanagh and Stein, JJ., concur. Adjudged that the determination ismodified, without costs, by annulling so much thereof as found petitioner guilty of refusing a directorder; petition granted to that extent and the Superintendent of Mid-Orange Correctional Facility isdirected to expunge all references thereto from petitioner's institutional record; and, as so modified,confirmed.