| Matter of Nimmons v Fischer |
| 2011 NY Slip Op 05381 [85 AD3d 1460] |
| June 23, 2011 |
| Appellate Division, Third Department |
| In the Matter of Curtis Nimmons, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
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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.
Following a search of petitioner's cube, he was charged in a misbehavior report withpossession of contraband, stolen property and altered property, misuse of state property andunauthorized exchange, organizational activity and assembly. Petitioner was found guilty of allcharges following a tier III disciplinary hearing. That determination was upheld on administrativeappeal with a reduction in the penalty assessed, and petitioner thereafter commenced this CPLRarticle 78 proceeding.
The detailed misbehavior report, supporting documentation and petitioner's admissionsduring the hearing provide substantial evidence to support the determination with regard to thecharges of unauthorized organizational activity and assembly (see Matter of Flemming v Fischer, 74AD3d 1693, 1694 [2010]; Matter ofPertillar v Fischer, 64 AD3d 1029, 1030 [2009]). Petitioner admitted that he possessedconfiscated documents that detailed meetings that he had convened with other inmates withregard to a religion of which petitioner is not a registered member. We further conclude thatsubstantial evidence supports the determination with respect to the charges of possession ofaltered property and contraband, inasmuch as petitioner admitted [*2]during the hearing that he possessed, among other things, a radiothat had been repaired with tape, as well as microfilms and cassette tapes with metal screws (see Matter of Wheeler-Whichard vFischer, 69 AD3d 1286, 1287 [2010]; Matter of McMoore v Bezio, 63 AD3d 1463, 1464 [2009], lvdenied 13 NY3d 707 [2009]).
However, we find that the remaining charges are not supported by substantial evidence.Although petitioner was in possession of several items that he was not permitted to have, noevidence was introduced that petitioner stole any of the items or possessed stolen property; thathe destroyed or intentionally damaged property belonging to others; that he lost, destroyed, stole,misused, damaged or wasted any state property; or that he acquired any of the property by virtueof an unauthorized exchange (seegenerally Matter of Fratello v Farrell, 49 AD3d 1115, 1116 [2008]; Matter of Garofolo v Cunningham, 34AD3d 1071, 1072-1073 [2006]). As such, that part of the determination finding him guiltyof those charges must be annulled. Given that the penalty included a recommended loss of goodtime, the matter must be remitted for a redetermination of the penalty (see Matter of Genis v New York StateDept. of Correctional Servs., 80 AD3d 1032, 1033 [2011]).
Mercure, J.P., Peters, Rose, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof possession of stolen property, misuse of state property and unauthorized exchange; petitiongranted to that extent, respondent is directed to expunge all references thereto from petitioner'sinstitutional record and matter remitted to respondent for an administrative redetermination of thepenalty imposed on the remaining violations; and, as so modified, confirmed.