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In the Matter of Joseph v. Brian Fischer

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


February 3, 2011

IN THE MATTER OF JOSEPH MASTROPIETRO, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

Decided and Entered: February 3, 2011

MEMORANDUM AND JUDGMENT

Calendar Date: December 16, 2010

Before: Cardona, P.J., Spain, Malone Jr., Kavanagh and McCarthy, 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier III disciplinary hearing, petitioner was found guilty of violent conduct, making threats, stalking and violating facility correspondence procedures. That determination was affirmed on administrative review, prompting this CPLR article 78 proceeding. The Attorney General has advised this Court that the determination has been administratively reversed and all references thereto expunged from petitioner's institutional record. Inasmuch as petitioner has been afforded all the relief to which he is entitled, the matter is dismissed as moot (see Matter of Murphy v Boucaud, 78 AD3d 1417 [2010]). Petitioner's request for reimbursement of the mandatory $5 surcharge is another matter and, inasmuch as the record does not demonstrate that such was refunded to his inmate account, he should be permitted to recoup this expense (see Matter of Mathie v Selsky, 45 AD3d 1169, 1170 [2007]).

Cardona, P.J., Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur.

ADJUDGED that the petition is dismissed, as moot, without costs, but with disbursements in the amount of $5.

ENTER:

Robert D. Mayberger

Clerk of the Court

20110203

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