| Matter of McFadden v Prack |
| 2012 NY Slip Op 02185 [93 AD3d 1268] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Reginald Mcfadden, Petitioner, v AlbertPrack, Director, Special Housing/Inmate Disciplinary, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of theSupreme Court in the Fourth Judicial Department by order of the Supreme Court, Cayuga County[Mark H. Fandrich, A.J.], entered September 22, 2011) to review a determination of respondent.The determination found after a tier III hearing that petitioner had violated various inmate rules.
It is hereby ordered that the determination is unanimously modified on the law and thepetition is granted in part by annulling that part of the determination finding that petitionerviolated inmate rule 113.27 (7 NYCRR 270.2 [B] [14] [xvii]) and vacating the recommendedloss of good time and as modified the determination is confirmed without costs, respondent isdirected to expunge from petitioner's institutional record all references to the violation of thatinmate rule, and the matter is remitted to respondent for further proceedings in accordance withthe following memorandum: Petitioner commenced this CPLR article 78 proceeding seeking toannul the determination, following a tier III disciplinary hearing, that he violated inmate rules103.20 (7 NYCRR 270.2 [B] [4] [ii] [soliciting goods or services]), 113.27 (7 NYCRR 270.2 [B][14] [xvii] [soliciting, possessing or exchanging other inmate crime and sentence information]),180.11 (7 NYCRR 270.2 [B] [26] [ii] [violating facility correspondence guidelines]), and 180.17(7 NYCRR 270.2 [B] [26] [vii] [providing legal assistance to another inmate without priorapproval]). We note at the outset that respondent correctly concedes that petitioner lackedadequate notice of the alleged violation of inmate rule 113.27. We therefore modify thedetermination and grant the petition in part by annulling that part of the determination thatpetitioner violated inmate rule 113.27, and we direct respondent to expunge from petitioner'sinstitutional record all references to the violation of that inmate rule (see generally Matter of Edwards vFischer, 87 AD3d 1328, 1330 [2011]). Inasmuch as it appears from the record thatpetitioner has already served his administrative penalty, the appropriate remedy is expungementof all references to the violation of that rule from his institutional record (see Matter of Brown v Fischer, 91AD3d 1336, 1337 [2012]). We note, however, that there was also a recommended loss ofgood time, and the record does not reflect the relationship between the violations of the inmaterules and that recommendation. We therefore further modify the determination by vacating thatrecommendation, and we remit the matter to respondent for reconsideration of the recommendedloss of good time (see Matter of Cross vGoord, 2 AD3d 1425, 1426 [2003]).
Contrary to petitioner's further contention, the determination that he violated the [*2]remaining inmate rules is supported by substantial evidence (seegenerally People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]). Petitioner failed toexhaust his administrative remedies with respect to his contention that respondent improperlyintercepted letters addressed to him inasmuch as he failed to raise that contention at his tier IIIhearing, "and this Court has no discretionary authority to reach that contention" (Matter of Fuentes v Fischer, 89 AD3d1468 [2011]; see Matter of Nelson v Coughlin, 188 AD2d 1071, 1071 [1992],appeal dismissed 81 NY2d 834 [1993]). We have reviewed petitioner's remainingcontentions and conclude that they are without merit. Present—Scudder, P.J., Centra,Peradotto, Lindley and Martoche, JJ.