| Matter of Ortiz v Simmons |
| 2009 NY Slip Op 08527 [67 AD3d 1208] |
| November 19, 2009 |
| Appellate Division, Third Department |
| In the Matter of Eddie Ortiz, Petitioner, v L. Simmons, asLieutenant, Eastern Correctional Facility, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Ulster County) to review (1) a determination of the Superintendent of EasternCorrectional Facility which found petitioner guilty of violating a prison disciplinary rule, (2) adetermination of the Commissioner of Correctional Services which directed petitioner be placedin involuntary protective custody, and (3) a determination of the Central Office ReviewCommittee which denied petitioner's grievance.
Petitioner was charged in a misbehavior report with failing to follow a regulation relating tomovement within the facility while incarcerated at Eastern Correctional Facility in UlsterCounty. Petitioner was found guilty of the charge following a tier II disciplinary hearing. Thisdetermination was affirmed on administrative appeal. Petitioner commenced this CPLR article78 proceeding challenging this determination, as well as a determination placing him ininvoluntary protective custody and a determination denying a grievance.
Initially, respondents concede and we agree that the charge of failing to follow a facilityregulation relating to movement is not supported by substantial evidence in the record and thatthe administrative determination should be annulled and all references thereto expunged frompetitioner's institutional record (seeMatter of Covington v Smith, 63 AD3d 1453, 1454 [2009]). As no loss of good timewas imposed, the matter need not be remitted to redetermine the penalty (see id.; Matter of Daum v Goord, 27 AD3d858, 858-859 [2006]).
The Attorney General has reported to this Court that petitioner has been transferred toanother correctional facility. Therefore, his challenge to the determination denying his grievancepertaining to the policy at Eastern requiring his participation in a drug rehabilitation program isrendered moot, as he is no longer aggrieved by the policy (see Matter of Bermudez v Fischer, 55 AD3d 1099, 1100 [2008],lv denied 11 NY3d 714 [2009]; Matter of Lou v Brown, 38 AD3d 1138, 1138-1139 [2007]).
Although petitioner's challenge to his initial placement in protective custody is now moot aswell, his request for expungement of this determination from his institutional record remainsjusticiable (see Matter of Dawes vFischer, 53 AD3d 902, 903 [2008]). Upon our review, we conclude that the involuntaryprotective custody recommendation, the hearing testimony and the anonymous note received byprison officials threatening petitioner's life were sufficient to support this determination (seeid.). Petitioner's contention that the letter was fabricated in retaliation for his filing of certaingrievances presented a credibility issue for the Hearing Officer to resolve (see Matter of Muller v Fischer, 62AD3d 1191, 1191 [2009]).
Cardona, P.J., Spain, Rose, Kane and Stein, JJ., concur. Adjudged that the October 16, 2007determination is annulled, without costs, petition granted to that extent and the Commissioner ofCorrectional Services is directed to expunge all references thereto from petitioner's institutionalrecord. Adjudged that the January 3, 2008 determination is confirmed, without costs, andpetition dismissed to that extent. Adjudged that the portion of the petition challenging the August29, 2007 determination is dismissed, as moot, without costs.