| Matter of Hernandez v Fischer |
| 2012 NY Slip Op 08601 [101 AD3d 1306] |
| December 13, 2012 |
| Appellate Division, Third Department |
| In the Matter of Jared Hernandez, Petitioner, v BrianFischer, as Commissioner of Corrections and Community Supervision,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.
After a search disclosed various items of contraband in petitioner's cell, he was charged in amisbehavior report with possessing weapons and a tattoo machine. At the tier III disciplinaryhearing that followed, petitioner pleaded guilty to possessing tattoo equipment and was foundguilty of the weapons possession charge. While the penalty imposed was reduced uponadministrative appeal, the determination was otherwise upheld, and this CPLR article 78proceeding ensued.
Contrary to petitioner's contention, his plea of guilty to possessing tattoo equipment"precludes any challenge to that portion of the determination" (Matter of Spencer v Goord, 38 AD3d1028, 1028 [2007], lv denied 9 NY3d 802 [2007]; see Matter of Linnen v Prack, 92 AD3d986, 987 [2012], lv dismissed 20 NY3d 905 [2012]). As for the weapons possessioncharge, respondent correctly concedes that it must be annulled due to the unjustified refusal ofcorrection officials to permit petitioner to observe the search of his cell (see Matter of Morales v Fischer, 89AD3d 1346, 1347 [2011]). Inasmuch as a loss of good time was recommended as [*2]part of the penalty imposed, the matter must be remitted so thatrespondent may reassess the penalty upon the remaining violation (see Matter of Linnen vPrack, 92 AD3d at 987; Matter ofDawes v Venettozzi, 87 AD3d 1219, 1220 [2011], lv denied 18 NY3d 803[2012]).
Peters, P.J., Lahtinen, Spain, Stein and McCarthy, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof possessing weapons and imposed a penalty; petition granted to that extent, respondent isdirected to expunge all references thereto from petitioner's institutional record and matterremitted to respondent for an administrative redetermination of the penalty imposed on theremaining violation; and, as so modified, confirmed.