| Matter of Sierra v Fischer |
| 2011 NY Slip Op 01915 [82 AD3d 1436] |
| March 17, 2011 |
| Appellate Division, Third Department |
| In the Matter of Alejandro Sierra, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, 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 found petitionerguilty of violating certain prison disciplinary rules.
As a participant in the sex offender counseling and treatment program, petitioner, a prisoninmate, signed an agreement to refrain from possessing pornography or any other materials of asexual nature not approved by treatment staff. Thus, when a search of his cube revealed severalbooks depicting sexual scenes, petitioner was charged with possessing materials in a prohibitedarea and refusing a direct order. Following a tier III disciplinary hearing, petitioner was foundguilty of both charges and that determination was affirmed on administrative review. This CPLRarticle 78 proceeding ensued.
Initially, respondent concedes and we agree that the record does not contain substantialevidence to support that part of the determination finding petitioner guilty of refusing a directorder and, therefore, the determination must be annulled to that extent (see Matter of Minton v Fischer, 73AD3d 1347, 1348 [2010], appeal dismissed 15 NY3d 848 [2010]; Matter of Benvenutti v Fischer, 67AD3d 1105, 1105 [2009]). Inasmuch as the penalty has already been served by petitionerand no loss of good time was recommended, we need not remit the matter for a redeterminationof the penalty (see Matter of Al-Ibrahimv Fischer, 73 AD3d 1314, 1315 [2010]; Matter of Wilson v Kadien, 69 AD3d 1104, 1104 [2010]).[*2]
Turning to the remaining charge, in view of the fact thatpetitioner admitted to owning the books in question, we find that the error in the misbehaviorreport misidentifying the place where the books were found did not fail to apprise him of thecharge against him or deprive him of the opportunity to prepare a defense (see Matter of Arriaga v Smith, 70AD3d 1160, 1160 [2010]; Matter ofLinares v Fischer, 59 AD3d 761 [2009], lv denied 12 NY3d 709 [2009]).Additionally, the record demonstrates that the finding of guilt resulted from the evidence andtestimony presented, rather than hearing officer bias (see Matter of Lamphear v Fischer, 76 AD3d 1166 [2010]; Matter of Hamilton v Bezio, 76 AD3d1125, 1126 [2010]). Finally, petitioner's contention that the Hearing Officer was notqualified to preside is not preserved for our review by his failure to object during the hearing(see Matter of Hamilton v Bezio, 76 AD3d at 1126).
Spain, J.P., Malone Jr., Kavanagh and McCarthy, 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.