| Matter of Argentina v Bezio |
| 2010 NY Slip Op 00628 [69 AD3d 1287] |
| January 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of James Argentina, Petitioner, v Norman Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Andrew B. Ayers 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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
A confidential investigation was conducted during which certain correspondence wasintercepted by correction officials indicating that petitioner had assaulted an inmate and hadthreatened other inmates. In addition, petitioner's cell was frisked and various items ofcontraband were found. As a result, he was charged in a misbehavior report with numerousdisciplinary rule violations. At the conclusion of a tier III disciplinary hearing, petitioner wasfound guilty of the charges of assault, making threats, gambling and possessing unauthorizedproperty. Among the penalties imposed was the loss of six months of good time. Thedetermination was later affirmed on administrative appeal and this CPLR article 78 proceedingensued.
Initially, respondent concedes, and we agree upon reviewing the record, that part of thedetermination finding petitioner guilty of gambling and possessing unauthorized property is notsupported by substantial evidence and must be annulled (see Matter of Quinones v Fischer, 55 AD3d 1200, 1200 [2008]).As for the remaining charges, however, the misbehavior report, [*2]together with the testimony adduced at the hearing and theconfidential information considered by the Hearing Officer in camera, provide substantialevidence supporting that part of the determination finding petitioner guilty of assault and makingthreats (see Matter of Torres vFischer, 53 AD3d 1008, 1009 [2008]; Matter of Hernandez v Selsky, 50 AD3d 1340, 1341 [2008]).Nevertheless, inasmuch as a loss of good time was imposed, the matter must be remitted to theCommissioner of Correctional Services for a redetermination of the penalty (see Matter of Castillo v Goord, 46AD3d 1060, 1061 [2007]; Matterof Arpa v David, 32 AD3d 1140, 1141 [2006]). Contrary to petitioner's claim, themisbehavior report was sufficiently specific to enable petitioner to prepare a defense and hefailed to demonstrate any prejudice from the alleged defect (see Matter of Couch vGoord, 255 AD2d 720, 721-722 [1998]). Although the report initially contained aninaccurate name of the inmate who was assaulted, that name had been related to correctionofficials by petitioner himself during an interview in which he admitted to assaulting the inmate.Petitioner's remaining contentions have been considered and are without merit.
Cardona, P.J., Spain, Rose, Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof gambling and possessing unauthorized property and imposed a penalty; petition granted tothat extent, the Commissioner of Correctional Services is directed to expunge all referencesthereto from petitioner's institutional record and matter remitted to the Commissioner ofCorrectional Services for an administrative redetermination of the penalty on the remainingviolations; and, as so modified, confirmed.