| Matter of Butler v Fischer |
| 2009 NY Slip Op 07916 [67 AD3d 1112] |
| November 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of Jamal Butler, 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 a fight involving 17 inmates in the prison yard, petitioner was charged in amisbehavior report with fighting, engaging in violent conduct and failing to report an injury afterhe was discovered with lacerations to his left forearm and the right side of his head. Following atier III disciplinary hearing, petitioner was found guilty of all charges. His administrative appealwas unsuccessful and petitioner thereafter commenced this CPLR article 78 proceeding.
Initially, respondent concedes and we agree that the record does not support the chargesagainst petitioner for fighting and engaging in violent conduct and, thus, the determination mustbe annulled to that extent with all references thereto expunged from petitioner's institutionalrecord (see Matter of Covington vSmith, 63 AD3d 1453 [2009], lv denied 13 NY3d 709 [2009]; Matter of Daum vGoord, 27 AD3d 858, 858-859 [2006]). Inasmuch as no loss of good time was imposed,the matter need not be remitted to respondent to redetermine the penalty (see Matter ofCovington v Smith, 63 AD3d at 1453; Matter of Daum v Goord, 27 AD3d at 859).
However, with regard to the charge of failing to report an injury, we find that the detailedmisbehavior report, hearing testimony, pictures of petitioner's injuries and his [*2]admissions during the hearing provide substantial evidence tosupport this finding of guilt (see Matterof Pertillar v Fischer, 64 AD3d 1029, 1030 [2009]; Matter of Davis v Fischer, 64 AD3d 847, 848 [2009], lvdenied 13 NY3d 709 [2009]).
Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur. Adjudged that the determinationis modified, without costs, by annulling so much thereof as found petitioner guilty of fightingand engaging in violent conduct; petition granted to that extent and respondent is directed toexpunge all references thereto from petitioner's institutional record; and, as so modified,confirmed.