| Matter of Al-Ibrahim v Fischer |
| 2010 NY Slip Op 04092 [73 AD3d 1314] |
| May 13, 2010 |
| Appellate Division, Third Department |
| In the Matter of Manhal Al-Ibrahim, 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.
Petitioner, a prison inmate, was charged in a misbehavior report with lying, refusing a directorder and engaging in action detrimental to the order of the facility. The charges arose fromallegations that petitioner, the chair of the facility's Inmate Liaison Committee, falsely reportedthat a representative on the committee had resigned, then improperly appointed another in hisplace who was elected to the position of committee vice chair. Petitioner was found guilty ascharged following a tier III disciplinary hearing and, after an unsuccessful administrative appeal,commenced this CPLR article 78 proceeding.
Initially, respondent concedes that substantial evidence in the record does not support thedetermination of guilt of the charge of refusing a direct order, and that part of the determinationis accordingly annulled. Inasmuch as petitioner has already served the penalty and no loss ofgood time was imposed, however, we need not remit the matter for a redetermination of thepenalty (see Matter of Wilson vKadien, 69 AD3d 1104, 1104 [2010]; Matter of Ortiz v Simmons, 67 AD3d 1208, 1209 [2009]).
Turning to the remaining charges, the misbehavior report, testimony and confidential [*2]information considered by the Hearing Officer provide substantialevidence supporting the determination of guilt (see Matter of Lopez v Fischer, 69 AD3d 1076, 1076 [2010]; Matter of Britt v Fischer, 54 AD3d1087 [2008]). The contrary testimony, as well as petitioner's claim that the misbehaviorreport was filed in retaliation for committee work done by him and the putative vice chair,presented credibility issues for the Hearing Officer to resolve (see Matter of Lopez vFischer, 69 AD3d at 1076; Matterof Pellot v Fischer, 67 AD3d 1231, 1231 [2009]).
Cardona, P.J., Spain, Kavanagh, Stein and Egan Jr., JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof refusing a direct order; petition granted to that extent and respondent is directed to expunge allreferences thereto from petitioner's institutional record; and, as so modified, confirmed.