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In the Matter of Billy Cooper v. Brian Fischer

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


November 23, 2011

IN THE MATTER OF BILLY COOPER, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 28, 2011

Before: Peters, J.P., Rose, Malone Jr., McCarthy and Egan Jr., 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.

A correction officer caught an inmate in the mess hall attempting to smuggle tobacco and found in that inmate's possession a letter setting forth prices and amounts, including information on how to contact the inmate responsible for delivering the contraband, who was identified by an alias. Following an investigation, it was determined that the inmate with the alias was petitioner and that he had in his cell an order form for a certain type of blades. As a result, petitioner was charged in a misbehavior report with smuggling and possessing contraband. It was later discovered that petitioner had sewn a pouch into the groin area of his boxer shorts and he was charged in a second misbehavior report with possessing an altered item. Following a tier III disciplinary hearing, petitioner was found guilty of the charges contained in both reports. The determination was later affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

Initially, given that petitioner pleaded guilty to possessing an altered item, he is precluded from challenging that part of the determination finding him guilty of this charge (see Matter of Smith v Fischer, 85 AD3d 1481, 1482 [2011]; Matter of Kae v Bezio, 79 AD3d 1496, 1497 [2010]). We reach a different conclusion, however, with respect to the charges contained in the first misbehavior report inasmuch as respondent concedes that substantial evidence does not support that part of the determination finding petitioner guilty of such charges (see Matter of Joseph v Fischer, 85 AD3d 1514, 1515 [2011]; Matter of Sierra v Fischer, 82 AD3d 1436, 1437 [2011]). Accordingly, that part of the determination must be annulled. Insofar as a loss of good time was imposed, the matter must be remitted to respondent for a redetermination of the penalty on the remaining charge (see Matter of Correnti v Fischer, 83 AD3d 1354, 1355 [2011]; Matter of Minton v Fischer, 73 AD3d 1347, 1348 [2010], appeal dismissed 15 NY3d 848 [2010]). In view of our disposition, we need not address petitioner's remaining contentions.

Peters, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of smuggling and possession of contraband and imposed a penalty; petition granted to that extent, respondent is directed to expunge all references thereto from petitioner's institutional record and matter remitted to respondent for an administrative redetermination of the penalty imposed on the remaining violation; and, as so modified, confirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court

20111123

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