| Matter of Cochran v Bezio |
| 2010 NY Slip Op 01044 [70 AD3d 1161] |
| February 11, 2010 |
| Appellate Division, Third Department |
| In the Matter of Troy Cochran, Petitioner, v NormanBezio, as Director of Special Housing and Inmate Disciplinary Programs,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 Albany County) to review two determinations of the Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in two misbehavior reports with violating various prison disciplinaryrules. The first report, alleging possession of a weapon, smuggling, a violation ofcorrespondence procedures, a violation of visitation procedures and gang activity, arose from aletter that petitioner wrote to his mother detailing her role in smuggling scalpels into the facility,as well as references to gang activity. The second misbehavior report stemmed from a letter thatpetitioner sent to another individual, detailing his role in bringing the scalpels to the facility,similar references to gang activity and also requesting that the individual smuggle in controlledsubstances. This report charged petitioner with the same charges as those included in the firstreport, as well as conspiring to introduce controlled substances into the facility.
Following separate tier III disciplinary hearings, petitioner was found guilty of all charges.On separate administrative appeals, the determination finding petitioner guilty of all chargescorresponding to the first misbehavior report was affirmed. On the appeal of the seconddetermination, the five charges that were also included in the first misbehavior report weredismissed as duplicative. The determination of guilt regarding conspiring to introduce controlled[*2]substances into the facility was affirmed and the penalty wasmodified. This CPLR article 78 proceeding ensued.
Initially, we conclude that the charge that petitioner possessed a weapon in violation of rule113.10 is not supported by substantial evidence in the record, as there is no evidence thatpetitioner made, possessed, sold or exchanged a weapon or dangerous instrument (see 7NYCRR 270.2 [B] [14] [i]). Accordingly, this portion of the determination must be annulled andall references thereto expunged from petitioner's institutional record (see Matter of Rodriguez v Selsky, 48AD3d 851, 852 [2008]). Additionally, as a loss of good time was imposed, the matter mustbe remitted to the Commissioner of Correctional Services for a reassessment of the penalty withrespect to the remaining violations (seeMatter of Williams v Goord, 28 AD3d 897, 898 [2006]). As to the other charges, themisbehavior reports, together with the hearing testimony of the author of the reports, who wastrained in the identification of gang-related material, and the two letters written by petitionerprovide substantial evidence to support the remaining determinations of guilt (see Matter of Arrollo v Leclaire, 62AD3d 1171, 1172 [2009]; Matterof Sweat v Fischer, 52 AD3d 1142, 1142 [2008]).
We reject petitioner's contention that his letters were seized in violation of departmentalrules, as the confidential testimony of the author of the reports established that the letters wereopened pursuant to an authorized mail watch (see Matter of Jimenez v Fischer, 56 AD3d 924, 925 [2008]; Matter of Knight v McGinnis, 10AD3d 754, 755 [2004]). Finally, as the duplicative charges contained in the secondmisbehavior report were dismissed on administrative appeal, petitioner's claim that the doctrineof res judicata should apply to those charges is rendered moot (see Matter of Caserta v Travis, 20AD3d 798, 799 [2005]). Petitioner's remaining contentions have been considered and foundto be lacking in merit.
Mercure, J.P., Spain, Rose, Lahtinen and Malone Jr., JJ., concur. Adjudged that theNovember 21, 2008 determination is modified, without costs, by annulling so much thereof asfound petitioner guilty of possessing a weapon and as imposed a penalty; petition granted to thatextent, the Commissioner of Correctional Services is directed to expunge all references theretofrom petitioner's institutional record, and matter remitted to the Commissioner of CorrectionalServices for an administrative redetermination of the penalty imposed on the remainingviolations; and, as so modified, confirmed. Adjudged that the December 4, 2008 determination isconfirmed, without costs, and petition dismissed to that extent.