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Wilson v. Kadien

State of New York Supreme Court, Appellate Division Third Judicial Department


January 14, 2010

IN THE MATTER OF KEITH WILSON, PETITIONER,
v.
GREGORY J. KADIEN, AS SUPERINTENDENT OF GOWANDA CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: November 4, 2009

Before: Spain, J.P., Rose, Stein, McCarthy and Garry, JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was observed having what appeared to be inappropriate sexual contact with his female visitor. As a result, he was charged in a misbehavior report with violating visiting procedures and engaging in a sexual offense. Petitioner pleaded guilty to the former charge and was found guilty of the latter at the conclusion of a tier III disciplinary hearing. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

Initially, we note, and respondent concedes, that the finding that petitioner was guilty of engaging in a sexual offense is not supported by substantial evidence in the record and that part of the determination must be annulled (see Matter of Belot v Selsky, 56 AD3d 911, 912 [2008]; Matter of Hodge v Selsky, 53 AD3d 953, 954 [2008]). However, insofar as no loss of good time was imposed and petitioner has already served the penalty, the matter need not be remitted for a redetermination of the penalty (see Matter of Boyd v Goord, 50 AD3d 1414 [2008]). As for the charge of violating visiting procedures, petitioner pleaded guilty to this charge and is precluded from challenging the evidence upon which is it based (see Matter of Combes v Artus, 62 AD3d 1134, 1135 [2009]; Matter of Wilson v Dubray, 54 AD3d 1089, 1090 [2008]).*fn1 Petitioner's remaining contentions have not been preserved for our review.

Spain, J.P., Rose, Stein, McCarthy and Garry, JJ., concur.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of engaging in a sexual offense; petition granted to that extent and the Commissioner of Correctional Services is directed to expunge all references thereto from petitioner's institutional record; and, as so modified, confirmed.


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