| Matter of Wheeler-Whichard v Fischer |
| 2010 NY Slip Op 00627 [69 AD3d 1286] |
| January 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jonathan Wheeler-Whichard, Petitioner, v BrianFischer, as Commissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Greene County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
After a frisk of his prison cell, petitioner was charged in a misbehavior report with, asrelevant here, possession of gang-related materials, excess/altered items, prohibited items andunauthorized literature. Following a tier III disciplinary hearing during which petitioner pleadedguilty to the possession of excess clothing, he was found guilty of the remaining charges. Hisadministrative appeal was unsuccessful, whereupon petitioner commenced the instant CPLRarticle 78 proceeding.
Initially, Supreme Court did not err in transferring the proceeding to this Court, inasmuch aspetitioner raises a question regarding substantial evidence (see Matter of Rivera v Fischer, 57 AD3d 1063, 1064 [2008], lvdenied 12 NY3d 705 [2009]). Turning to the merits, respondent concedes that substantialevidence does not exist in the record to support the determination insofar as it found petitionerguilty of possessing unauthorized literature and, therefore, that part of the determination must beannulled. Additionally, the matter must be remitted to respondent for a redetermination of thepenalty inasmuch as it included the loss of [*2]good time (see Matter of Gomez v Leclaire, 53AD3d 994, 995 [2008]; Matter ofCanzater-Smith v Selsky, 28 AD3d 899, 899-900 [2006]).
With regard to the charges that petitioner possessed unauthorized organizational materials,the misbehavior report, the seized photographs and the testimony of a correction officer trainedin recognizing gang-related materials provided substantial evidence that petitioner was inpossession of materials depicting gang signs (see Matter of Parks v Smith, 49 AD3d 1123, 1123 [2008]; Matter of Delos Santos v Goord, 4AD3d 709, 710 [2004]). Petitioner's denial that the hand signals in the pictures were gangrelated raised an issue of credibility for the Hearing Officer to resolve (see Matter of Parks vSmith, 49 AD3d at 1124). Furthermore, we reject petitioner's contention that hewas improperly found guilty of violating 7 NYCRR 270.2 (B) (6) (iv) on the premise that he wasnot in possession of an updated copy of the rule book and had not received a memorandumregarding the rule. At the hearing, petitioner introduced into evidence a copy of the rule bookthat he did possess, which similarly prohibited the possession of unauthorized organizational organg materials pursuant to 7 NYCRR (B) (6) (former [iii]), a rule that he had been previouslyconvicted of violating at least twice (see Matter of Taylor v Poole, 301 AD2d 712,712-713 [2003]; cf. Matter of Guerin vMiller, 16 AD3d 799 [2005]). Additionally, the determination finding petitioner guiltyof possessing an unauthorized item was supported by substantial evidence in the form of thedetailed misbehavior report and petitioner's testimony that he, indeed, was in possession of ahard plastic mirror (see Matter ofPertillar v Fischer, 64 AD3d 1029, 1030 [2009]; Matter of McMoore v Bezio, 63 AD3d 1463, 1464 [2009], lvdenied 13 NY3d 707 [2009]).
We find no evidence in the record to substantiate petitioner's claim of hearing officer bias orthat the determination flowed from such alleged bias (see Matter of Stallone v Fischer, 65 AD3d 1410, 1410-1411[2009]; Matter of Cannon vFischer, 62 AD3d 1109 [2009]). Lastly, the intermittent gaps in the hearing transcriptdo not preclude meaningful review (seeMatter of McFadden v Venettozzi, 65 AD3d 1401 [2009]; Matter of Davis v Fischer, 64 AD3d847, 848 [2009], lv denied 13 NY3d 709 [2009]).
Petitioner's remaining contentions have been rendered academic or considered and found tobe without merit.
Peters, J.P., Spain, Malone Jr., Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof possession of unauthorized literature and imposed a penalty; petition granted to that extent,respondent is directed to expunge all references thereto from petitioner's institutional record andmatter remitted to respondent for an administrative redetermination of the penalty on theremaining violations; and, as so modified, confirmed.