State of New York Supreme Court, Appellate Division Third Judicial Department
June 30, 2011
IN THE MATTER OF TYRELLE JOSEPH ET AL., PETITIONERS,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review separate determinations of respondent which found petitioners guilty of violating certain prison disciplinary rules.
The opinion of the court was delivered by: Peters, J.
MEMORANDUM AND JUDGMENT
Calendar Date: May 27, 2011
Before: Mercure, J.P., Peters, Malone Jr., Kavanagh and Stein, JJ.
Petitioners, two prison inmates, were charged in separate misbehavior reports with gang activity, conspiring to commit assault on staff and conspiring to engage in group violence. Following separate tier III hearings, petitioners were found guilty as charged. These determinations were affirmed on administrative review and petitioners thereafter commenced this CPLR article 78 proceeding.
In their petition petitioners limit their challenge to that part of the determinations that found them guilty of conspiring to commit assault on staff and conspiring to lead group violence and do not contest the portion of the determinations finding them guilty of gang activity. Respondent concedes that the determinations of guilt on these conspiracy charges are not supported by substantial evidence and, based upon our review of the record, we agree. Accordingly, the petition is granted and, in light of the undischarged administrative penalty and the recommended loss of good time, we remit this matter to respondent for a redetermination of the penalties imposed (see Matter of Gomez v Leclaire, 53 AD3d 994, 995 ).
Mercure, J.P., Malone Jr., Kavanagh and Stein, JJ., concur.
ADJUDGED that the determinations are modified, without costs, by annulling so much thereof as found petitioners guilty of conspiring to commit assault on staff and conspiring to lead group violence and imposed penalties; petition granted, respondent is directed to expunge all references thereto from petitioners' institutional records and matter remitted to respondent for an administrative redetermination of the penalties on the remaining violations; and, as so modified, confirmed.
Robert D. Mayberger Clerk of the Court
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