| Matter of Belot v Selsky |
| 2008 NY Slip Op 08569 [56 AD3d 911] |
| November 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jean Belot, Jr., Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in two misbehavior reports with various prison disciplinary ruleviolations as a result of certain events that occurred in the law library on July 25, 2006. In thefirst misbehavior report, petitioner was charged with refusing a direct order and misusing stateproperty after he ignored a correction officer's directive restricting his use of the law librarycomputer to legal work and prepared a draft proposal detailing computer problems that heintended to submit to the Superintendent of the facility. In the second misbehavior report,petitioner was charged with harassment, lying and stealing state property after he becameinvolved in an argument with a correction officer over his alleged failure to return certain itemsto the law library. Following a tier III disciplinary hearing, petitioner was found guilty of thecharges. The penalty was subsequently modified and the determination was affirmed onadministrative appeal. This CPLR article 78 proceeding ensued.
Initially, respondent concedes and we agree, upon reviewing the record, that substantial [*2]evidence does not support that part of the determination findingpetitioner guilty of lying and stealing state property as charged in the second misbehavior report.Accordingly, that part of the determination must be annulled and all references thereto expungedfrom petitioner's institutional record (seeMatter of Rodriguez v Selsky, 48 AD3d 851, 852 [2008]; Matter of Wan Zhang v Murphy, 1AD3d 784, 784 [2003]). Nevertheless, inasmuch as no loss of good time was imposed andpetitioner has already served the penalty, the matter need not be remitted for a reassessment ofthe penalty (see Matter of Sloane vMcKinney, 48 AD3d 850, 850 [2008]; Matter of Rizzuto v Goord, 36 AD3d 1124, 1124 [2007]).
Turning to the remaining charges, the misbehavior reports, documentary evidence andtestimony at the hearing provide substantial evidence supporting the Commissioner'sdetermination (see Matter of Green vGoord, 26 AD3d 562, 563 [2006]). Petitioner's claim that the misbehavior report waswritten in retaliation for his filing of a grievance presented a credibility issue for the HearingOfficer to resolve (see Matter ofWilliams v Selsky, 50 AD3d 1426 [2008], lv denied 11 NY3d 703 [2008]; Matter of Salahuddin v Goord, 49AD3d 1107 [2008], lv denied 10 NY3d 717 [2008]).
His remaining contentions, including his claim that the Hearing Officer was biased, havebeen considered and found to be lacking in merit.
Cardona, P.J., Mercure, Spain, Lahtinen and Kavanagh, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof lying and stealing state property; petition granted to that extent and the Commissioner ofCorrectional Services is directed to expunge all references thereto from petitioner's institutionalrecord; and, as so modified, confirmed.