State of New York Supreme Court, Appellate Division Third Judicial Department
March 17, 2011
IN THE MATTER OF ALEJANDRO SIERRA, PETITIONER,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.
MEMORANDUM AND JUDGMENT
Calendar Date: February 2, 2011
Before: Spain, J.P., 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.
As a participant in the sex offender counseling and treatment program, petitioner, a prison inmate, signed an agreement to refrain from possessing pornography or any other materials of a sexual nature not approved by treatment staff. Thus, when a search of his cube revealed several books depicting sexual scenes, petitioner was charged with possessing materials in a prohibited area and refusing a direct order. Following a tier III disciplinary hearing, petitioner was found guilty of both charges and that determination was affirmed on administrative review. This CPLR article 78 proceeding ensued. Initially, respondent concedes and we agree that the record does not contain substantial evidence to support that part of the determination finding petitioner guilty of refusing a direct order and, therefore, the determination must be annulled to that extent (see Matter of Minton v Fischer, 73 AD3d 1347, 1348 , appeal dismissed 15 NY3d 848 ; Matter of Benvenutti v Fischer, 67 AD3d 1105, 1105 ). Inasmuch as the penalty has already been served by petitioner and no loss of good time was recommended, we need not remit the matter for a redetermination of the penalty (see Matter of Al-Ibrahim v Fischer, 73 AD3d 1314, 1315 ; Matter of Wilson v Kadien, 69 AD3d 1104, 1104 ).
Turning to the remaining charge, in view of the fact that petitioner admitted to owning the books in question, we find that the error in the misbehavior report misidentifying the place where the books were found did not fail to apprise him of the charge against him or deprive him of the opportunity to prepare a defense (see Matter of Arriaga v Smith, 70 AD3d 1160, 1160 ; Matter of Linares v Fischer, 59 AD3d 761 , lv denied 12 NY3d 709 ). Additionally, the record demonstrates that the finding of guilt resulted from the evidence and testimony presented, rather than hearing officer bias (see Matter of Lamphear v Fischer, 76 AD3d 1166, 1166 ; Matter of Hamilton v Bezio, 76 AD3d 1125, 1126 ). Finally, petitioner's contention that the Hearing Officer was not qualified to preside is not preserved for our review by his failure to object during the hearing (see Matter of Hamilton v Bezio, 76 AD3d at 1126).
Spain, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of refusing a direct order; petition granted to that extent and respondent is directed to expunge all references thereto from petitioner's institutional record; and, as so modified, confirmed.
Robert D. Mayberger Clerk of the Court
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