| Matter of Pitt v Dubray |
| 2009 NY Slip Op 03801 [62 AD3d 1101] |
| May 14, 2009 |
| Appellate Division, Third Department |
| In the Matter of Matthew Pitt, Petitioner, v Keith Dubray,as Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady 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, an inmate, was found guilty following a tier III disciplinary hearing ofparticipating in third-party telephone calls, violating facility telephone procedures and violatingfacility correspondence procedures. Upon administrative appeal, that determination was affirmedwith a modified penalty. Petitioner thereafter commenced this CPLR article 78 proceedingseeking annulment.
Preliminarily, respondent concedes and, upon review of the record, we concur, thatsubstantial evidence does not support the charge of violating facility correspondence procedures.Accordingly, the determination is annulled to that extent and all references thereto shall beexpunged from petitioner's institutional record (see Matter of Castillo v Goord, 46 AD3d 1060, 1060-1061[2007]).[FN*][*2]
Turning to the remaining charges of participating inthird-party telephone calls and violating facility telephone procedures, we conclude that they aresupported by substantial evidence consisting of the misbehavior report, testimony adduced at thehearing and audiotapes (see Matter ofJames v Fischer, 57 AD3d 1064, 1064-1065 [2008]).
Petitioner's remaining claims have been examined and found to be lacking in merit.
Cardona, P.J., Mercure, Spain, Kane and Stein, JJ., concur. Adjudged that the determinationis modified, without costs, by annulling so much thereof as found petitioner guilty of violatingfacility correspondence procedures and imposed a penalty; petition granted to that extent and theCommissioner of Correctional Services is directed to expunge all references thereto frompetitioner's institutional record, and matter remitted to the Commissioner of CorrectionalServices for an administrative redetermination of the penalty imposed on the remainingviolations; and, as so modified, confirmed.
Footnote *: Inasmuch as a recommendedloss of good time was imposed as part of the original penalty and this charge must now bedismissed, the matter must be remitted to the Commissioner of Correctional Services for areassessment of the penalty with respect to the remaining violations (see Matter of Rampersant v Selsky, 32AD3d 1085, 1086 [2006]).