| Matter of Linnen v Prack |
| 2012 NY Slip Op 00675 [92 AD3d 986] |
| February 2, 2012 |
| Appellate Division, Third Department |
| In the Matter of Anthony H. Linnen, Petitioner, v Albert Prack, asActing Director of Special Housing and Inmate Disciplinary Programs,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 the Commissioner of Correctionsand Community Supervision which found petitioner guilty of violating certain prison disciplinaryrules.
During the course of an investigation, correction officials discovered that petitioner wasdoing legal work for another inmate, had copies of the inmate's legal documents in his desk in thelaw library and attempted to kite a letter to the inmate by sending it to an address belonging to anattorney. As a result, petitioner was charged in a misbehavior report with providing unauthorizedlegal assistance, violating facility correspondence procedures and making a false statement. Atthe conclusion of a tier III disciplinary hearing, he was found guilty of the charges and thedetermination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Initially, we find no merit to petitioner's claim that the hearing was not completed in a timelymanner. Excluding the date that the misbehavior report was written (see Matter of Rush v Bezio, 79 AD3d1548, 1549 [2010]), an extension was obtained within the required 14-day time period andthe hearing was concluded within the additional time period granted by the extension (see7 NYCRR 251-5.1 [b]; Matter of Ifill vFischer, 72 AD3d 1367, 1368 [2010]). Turning to the merits, the Attorney Generalconcedes, and we agree, that substantial evidence does not support that part of the determinationfinding petitioner guilty of making a false statement and providing unauthorized legal assistance(see Matter of Smith v Fischer, 87AD3d 1198, 1199 [2011]; Matter ofGittens v New York State Dept. of Correctional Servs., 87 AD3d 1194, 1195 [2011]).On the other hand, petitioner pleaded guilty to violating facility correspondence procedures andis precluded from challenging the determination with regard to this charge (see Matter of Lamere v Fischer, 87AD3d 768, 768 [2011]; Matter ofBrown v Fischer, 73 AD3d 1362, 1363 [2010]). Consequently, that part of thedetermination finding petitioner guilty of making a false statement and providing unauthorizedlegal assistance must be annulled and, because a loss of good time was imposed, the matter mustbe remitted to the Commissioner of Corrections and Community Supervision for aredetermination of the penalty (seeMatter of Dawes v Venettozzi, 87 AD3d 1219, 1220 [2011], lv denied 18 NY3d803 [2012]; Matter of Nimmons vFischer, 85 AD3d 1460, 1461 [2011]). In view of our disposition, petitioner's remainingcontentions need not be addressed.
Mercure, A.P.J., Lahtinen, Spain, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof making a false statement and providing unauthorized legal assistance and imposed a penalty;petition granted to that extent, the Commissioner of Corrections and Community Supervision isdirected to expunge all references thereto from petitioner's institutional record and matterremitted to the Commissioner for an administrative redetermination of the penalty on theremaining violation; and, as so modified, confirmed.