| Matter of Smith v Fischer |
| 2011 NY Slip Op 06447 [87 AD3d 1198] |
| September 15, 2011 |
| Appellate Division, Third Department |
| In the Matter of Aaron Smith, Petitioner, v Brian Fischer,as Commissioner of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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.
During a search of petitioner's cell, a correction officer found, among other things, itemsbelonging to other inmates as well as a graffiti-style drawing containing a symbol associated withan illegal gang. As a result, petitioner was charged in a misbehavior report with possessinggang-related material, engaging in an unauthorized exchange and possessing personalinformation of an employee. He was found guilty of the charges at the conclusion of a tier IIIdisciplinary hearing and the determination was affirmed on administrative appeal. This CPLRarticle 78 proceeding ensued.
Initially, respondent concedes and we agree that substantial evidence does not support thatpart of the determination finding petitioner guilty of possessing personal information of anemployee, and the determination must be annulled to that extent (see Matter of Sierra v Fischer, 82AD3d 1436, 1437 [2011]; Matter ofFernandez v Goord, 27 AD3d 806, 806 [2006]). However, given that petitioner hasalready served the penalty and a loss of good time was not imposed, the matter need not beremitted for a reassessment of the penalty (see Matter of Hernandez v Fischer, 79 AD3d 1544, 1545 [2010],lv denied 16 NY3d 710 [2011]; Matter of Al-Ibrahim v Fischer, 73 AD3d 1314, 1315 [2010]). Asfor the charges of engaging in an [*2]unauthorized exchange andpossessing gang-related material, the misbehavior report, documentary evidence and testimonyadduced at the hearing support the finding of guilt (see Matter of Moore v Fischer, 76 AD3d 737, 737 [2010]; Matter of Parra v Fischer, 76 AD3d724, 725 [2010], lv denied 15 NY3d 714 [2010]). Petitioner's claim of retaliationpresented a credibility issue for the hearing officer to resolve (see Matter of Phipps v Fischer, 82 AD3d 1396, 1397 [2011]). Hisassertion that the hearing officer was biased is not substantiated by the record, and there is noindication that the determination flowed from any alleged bias (see Matter of Cornwall v Fischer, 74AD3d 1507, 1509 [2010]; Matter ofPurcell v McKoy, 54 AD3d 1113, 1114 [2008]). Petitioner's remaining contentions areeither unpreserved for our review or are lacking in merit.
Mercure, J.P., Peters, Malone Jr., Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof possessing personal information of an employee; determination annulled to that extent andrespondent is directed to expunge all references thereto from petitioner's institutional record; and,as so modified, confirmed.