| Matter of Benvenutti v Fischer |
| 2009 NY Slip Op 07910 [67 AD3d 1105] |
| November 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of Alberto Benvenutti, 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 SupremeCourt, entered in Albany County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Following an argument, petitioner was involved in a physical altercation with another inmateand struck that inmate with a weight bar. The inmate reported the incident to a correction officerand, when questioned about his whereabouts during the incident, petitioner gave falseinformation. As a result, petitioner was charged in a misbehavior report with assaulting anotherinmate, possessing a weapon, possessing an altered item and making a false statement.Following a tier III disciplinary hearing, petitioner was found guilty of all of the charges and thedetermination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Initially, respondent concedes and we agree that the record does not contain substantialevidence supporting that part of the determination finding petitioner guilty of possessing analtered item (see 7 NYCRR 270.2 [B] [14] [ii]); consequently, the determination must beannulled to such extent (see Matter ofSloane v McKinney, 48 AD3d 850, 850 [2008]; Matter of Rizzuto v Goord, 36 AD3d 1124, 1124 [2007]). Giventhat no loss of good time was imposed and petitioner has already served the penalty, however,the matter need not be remitted for a redetermination of the penalty (see Matter of Rizzuto vGoord, 36 AD3d at 1124; Matter of[*2]Gonzalez v Selsky, 23 AD3d 724, 725 [2005]). Asfor the remaining charges, the misbehavior report, documentary evidence and testimony adducedat the hearing, including that of the victim of the assault, provide substantial evidence supportingthe determination of guilt (see Matter ofDozier v Selsky, 54 AD3d 1074, 1075 [2008]; Matter of Martinez v Selsky, 53 AD3d 989 [2008]). Petitioner'sdenial of the charges and assertion that he was in a different part of the facility at the time of theincident presented a credibility issue for the Hearing Officer to resolve (see Matter of Williams v Selsky, 50AD3d 1426, 1427 [2008], lv denied 11 NY3d 703 [2008]). Petitioner's remainingcontentions have not been preserved for our review due to his failure to either raise them at thehearing or in his administrative appeal.
Mercure, J.P., Rose, Kane, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof possessing an altered item; petition granted to that extent and respondent is directed toexpunge all references thereto from petitioner's institutional record; and, as so modified,confirmed.