| Matter of Platten v Bezio |
| 2010 NY Slip Op 04494 [73 AD3d 1419] |
| May 27, 2010 |
| Appellate Division, Third Department |
| In the Matter of John L. Platten, Petitioner, v Norman R. Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, engaged in a conversation with his wife while on work detail as agroundskeeper and later lied about the incident to a correction officer. As a result, petitionerreceived a misbehavior report charging him with unauthorized communication with a member ofthe public while on outside work detail, providing false statements and leaving his assigned area.During a tier III disciplinary hearing, petitioner pleaded guilty to the first two charges and wassubsequently found guilty of the third. That determination was upheld on administrative appealand petitioner commenced this CPLR article 78 proceeding.
Petitioner does not contest the determination with respect to the two charges to which hepleaded guilty and, inasmuch as the Attorney General concedes that there was insufficientevidence to sustain the charge that he left his assigned area, we annul the determination to thatextent and direct that all references thereto be expunged from petitioner's institutional record (see Matter of Foster v Bezio, 62 AD3d1222, 1223 [2009]). Because the original penalty imposed included a recommended loss ofgood time, the matter must be remitted to the Commissioner of [*2]Correctional Services for a reassessment of the penalty relative tothe remaining charges (see Matter ofArgentina v Bezio, 69 AD3d 1287, 1288 [2010], lv denied 14 NY3d709 [2010]; Matter of Pitt v Dubray, 62 AD3d 1101, 1101 n [2009], lvdenied 13 NY3d 706 [2009]).
Mercure, J.P., Peters, Spain, Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof leaving his assigned area and imposed a penalty; petition granted to that extent, theCommissioner of Correctional Services is directed to expunge all references thereto frompetitioner's institutional record and matter remitted to the Commissioner of Correctional Servicesfor an administrative redetermination of the penalty on the remaining violations; and, as somodified, confirmed.