| Matter of Correnti v Fischer |
| 2011 NY Slip Op 03322 [83 AD3d 1354] |
| April 28, 2011 |
| Appellate Division, Third Department |
| In the Matter of Anthony Correnti, 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 Supreme Court,entered in Albany County) to review a determination of respondent which found petitioner guiltyof violating certain prison disciplinary rules.
Petitioner, an inmate, worked as a clerk in the law library of the correctional facility where hewas incarcerated. During a random search of his desk, a correction officer found, among otherthings, gambling documentation as well as postdated inmate call out slips revealing that theproper protocol for processing such slips had not been followed. As a result, petitioner wascharged in a misbehavior report with possessing gambling paraphernalia, possessingunauthorized departmental documents, violating facility movement regulations and refusing adirect order. He was found guilty of the charges at the conclusion of a tier III disciplinaryhearing. The determination was later affirmed on administrative appeal, resulting in this CPLRarticle 78 proceeding.
Initially, we find no merit to petitioner's contention that the misbehavior report was notwritten "as soon as practicable" as required by 7 NYCRR 251-3.1 (a). The report was prepared ina timely manner given that it was written at the conclusion of a two-week investigation intopetitioner's questionable conduct while performing his duties as a law library clerk (see Matter of [*2]Norris v Fischer, 71 AD3d 1211, 1212 [2010]; Matter of Decastro v Prack, 62 AD3d1224, 1225 [2009]).
Turning to the merits, petitioner's plea of guilty to possessing gambling paraphernaliaprecludes him from challenging the evidence supporting the determination of guilt with respectto this charge (see Matter of Wilson vKadien, 69 AD3d 1104, 1104 [2010]; Matter of Pedraza v Fischer, 65 AD3d 1434, 1435 [2009]). As forthe charges of possessing unauthorized departmental documents and violating facility movementregulations, we find that the misbehavior report and related documentation, together with thetestimony of the correction officer who conducted the investigation, provide substantial evidencesupporting the determination of guilt with respect to these charges (see Matter of Moore v Fischer, 76AD3d 737, 737 [2010]; Matter of Powell v Goord, 34 AD3d 876, 877 [2006]).Petitioner's denial of any wrongdoing presented a credibility issue for the Hearing Officer toresolve (see Matter of Diaz v Smith,54 AD3d 1080, 1081 [2008]; Matter of Britt v Fischer, 54 AD3d 1087 [2008]). As for the chargeof refusing a direct order, however, respondent concedes and we agree after a thorough review ofthe record that substantial evidence does not support the finding of guilt with respect to thischarge and, therefore, it must be annulled (see Matter of Al-Ibrahim v Fischer, 73 AD3d 1314, 1315 [2010]).As a loss of good time was imposed as part of the penalty, the matter must be remitted torespondent for an administrative reassessment of the penalty on the remaining charges (see Matter of Quinones v Fischer, 78AD3d 1407, 1408 [2010]; Matter ofMinton v Fischer, 73 AD3d 1347, 1348 [2010], lv denied 15 NY3d 848 [2010]).
We have considered petitioner's other contentions and find them to be unpersuasive.
Peters, J.P., Lahtinen, Stein, Garry and Egan Jr., JJ., concur. Adjudged that the determinationis modified, without costs, by annulling so much thereof as found petitioner guilty of refusing adirect order; petition granted to that extent, respondent is directed to expunge all referencesthereto from petitioner's institutional record and matter remitted to respondent for anadministrative redetermination of the penalty imposed on the remaining violations; and, as somodified, confirmed.