| Matter of Farooq v Fischer |
| 2012 NY Slip Op 06604 [99 AD3d 709] |
| October 3, 2012 |
| Appellate Division, Second Department |
| In the Matter of Mian Farooq, Petitioner, v Brian Fischer,as Commissioner of the New York State Department of Correctional Services,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing and SimonHeller of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review a determination of the Acting Director ofSpecial Housing/Inmate Disciplinary Program, on behalf of Brian Fischer, as Commissioner ofthe New York State Department of Correctional Services, dated July 23, 2010, which confirmeda determination of a hearing officer dated June 10, 2010, made after a tier III disciplinary hearing,that the petitioner was guilty of violating prison disciplinary rules 103.20 (two counts), 106.10,and 107.11 (7 NYCRR 270.2 [B] [4] [ii]; [7] [i]; [8] [ii]), and imposing penalties.
Adjudged that the petition is granted, on the law, without costs or disbursements, to theextent that so much of the determination dated July 23, 2010, as confirmed the determination thatthe petitioner was guilty of violating prison disciplinary rules 103.20 (two counts) (7 NYCRR270.2 [B] [4] [ii]) and 107.11 (7 NYCRR 270.2 [B] [8] [ii]) is annulled, those charges aredismissed, the respondent is directed to expunge all references to those findings from thepetitioner's institutional record, the petition is otherwise denied, the determination dated July 23,2010, is otherwise confirmed, and the proceeding is otherwise dismissed on the merits.
The petitioner was charged with violating prison disciplinary rules 103.20 (two counts),106.10, and 107.11 (7 NYCRR 270.2 [B] [4] [ii]; [7] [i]; [8] [ii]). Those rules prohibit inmatesfrom, inter alia, soliciting goods or services from prison staff, harassing any prison employee,and disobeying a direct order. The charges were based on two misbehavior reports which allegethat, on two occasions, the petitioner solicited certain information from a prison librarianregarding magazine subscriptions that were available on the Internet. The misbehavior reportsfurther charge that, following the petitioner's first alleged solicitation of information from thelibrarian, a corrections officer gave the petitioner a direct order not to request any informationfrom the internet. However, the misbehavior reports allege that the petitioner solicitedinformation from the librarian a second time, in violation of the direct order. In addition, it wasalleged that, after the librarian declined to comply with the petitioner's second alleged solicitationof information, the petitioner "hover[ed]" near the librarian's work area for an extended period oftime, causing her to feel uncomfortable.[*2]
Following a tier III disciplinary hearing, the petitionerwas found guilty of all the charges. Upon the petitioner's administrative appeal of the hearingofficer's determination, the Acting Director of Special Housing/Inmate Disciplinary Program, onbehalf of Brian Fischer, as Commissioner of the New York State Department of CorrectionalServices (hereinafter the respondent), confirmed the determination.
The petitioner commenced the instant proceeding pursuant to CPLR article 78 in theSupreme Court, Dutchess County, to challenge the determination. In an order dated January 20,2011, the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804 (g).
"A prison disciplinary determination made as a result of a hearing at which evidence wastaken pursuant to direction by law must be supported by substantial evidence" (Matter of Adamson v Barto, 37 AD3d597, 598 [2007]; see CPLR 7803 [4]; Matter of Vaughn v Orlando, 79 AD3d 1048, 1049 [2010]; Matter of Reyes v Goord, 49 AD3d546 [2008]).
Here, the determination that the petitioner violated prison disciplinary rules 103.20 and107.11 was not supported by substantial evidence. Specifically, the evidence was insufficient todemonstrate that the petitioner's two requests for information from the prison librarian regardingmagazine subscriptions that were available on the Internet constituted solicitations of "goods andservices" that were prohibited by rule 103.20 (7 NYCRR 270.2 [B] [4] [ii]). Further, the evidencewas insufficient to demonstrate that the petitioner's mere presence in the library, absent anycommunication with the prison librarian, constituted harassment of prison staff as prohibited byrule 107.11 (see 7 NYCRR 270.2 [B] [8] [ii]).
However, the evidence presented at the hearing, including the misbehavior reports and thepetitioner's plea of guilty, provide substantial evidence to support the determination that thepetitioner was guilty of disobeying a direct order in violation of rule 106.10 (see 7NYCRR 270.2 [B] [7] [i]).
The penalty imposed for the four rule violations has already been served. Since there was norecommended loss of good-time credit, there is no need to remit the matter to the respondent forreconsideration of the penalty insofar as it relates to the violation of the prison disciplinary ruleswhich we have sustained (see Matter ofRodriguez v Fischer, 96 AD3d 1374 [2012]; Matter of Maybanks v Goord, 306AD2d 839, 840 [2003]). Skelos, J.P., Balkin, Leventhal and Cohen, JJ., concur.