| Matter of Grant v Fischer |
| 2009 NY Slip Op 05047 [63 AD3d 1398] |
| June 18, 2009 |
| Appellate Division, Third Department |
| In the Matter of Ricky Grant, Appellant, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 10, 2008 in St.Lawrence County, which partially granted petitioner's application, in a proceeding pursuant toCPLR article 78, to annul a determination of respondent finding petitioner guilty of violating aprison disciplinary rule.
Following a tier III disciplinary hearing, petitioner was found guilty of possessing an altereditem, but not guilty of possessing a weapon. The former charge constituted, at most, a tier IIdisciplinary rule violation (see 7 NYCRR 270.2 [B] [14] [ii]), while the latter chargeconstituted, at most, a tier III disciplinary rule violation (see 7 NYCRR 270.2 [B] [14][i]). The determination of guilt was upheld on administrative appeal. However, the penalty wasreduced from 60 days of confinement to the special housing unit and loss of privileges to 30days. Petitioner subsequently commenced this CPLR article 78 proceeding challenging thedetermination, asserting that references to the tier III disciplinary rule violation were neverremoved from his institutional record and that this resulted in an increase in his security statusfrom medium to maximum. Following joinder of issue, Supreme Court granted the petition to theextent of directing that all references to the tier III designation be expunged from petitioner'sinstitutional record. The court, however, declined to order that petitioner be restored to thesecurity status he enjoyed prior to the disciplinary hearing. Petitioner now appeals.
It is well established that inmates have no constitutional or statutory rights to their priorhousing or programming status (see Matter of Jackson v Coughlin, 199 AD2d 704[1993]; Matter [*2]of Howard v Miller, 193 AD2d 988,989 [1993]). In view of this, petitioner is not entitled to be restored to the security classificationhe held prior to the disciplinary hearing. The only other relief specified in his petition, namely,expungement of the tier III references from his institutional record, was granted by SupremeCourt.
Cardona, P.J., Mercure, Spain, Kane and Stein, JJ., concur. Ordered that the judgment isaffirmed, without costs.