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In the Matter of Anthony H. v. Albert Prack

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


February 2, 2012

IN THE MATTER OF ANTHONY H. LINNEN, PETITIONER,
v.
ALBERT PRACK, AS ACTING DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: December 12, 2011

Before: Mercure, Acting P.J., Lahtinen, Spain, Kavanagh 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 Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

During the course of an investigation, correction officials discovered that petitioner was doing legal work for another inmate, had copies of the inmate's legal documents in his desk in the law library and attempted to kite a letter to the inmate by sending it to an address belonging to an attorney. As a result, petitioner was charged in a misbehavior report with providing unauthorized legal assistance, violating facility correspondence procedures and making a false statement. At the conclusion of a tier III disciplinary hearing, he was found guilty of the charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

Initially, we find no merit to petitioner's claim that the hearing was not completed in a timely manner. Excluding the date that the misbehavior report was written (see Matter of Rush v Bezio, 79 AD3d 1548, 1549 [2010]), an extension was obtained within the required 14-day time period and the hearing was concluded within the additional time period granted by the extension (see 7 NYCRR 251-5.1 [b]; Matter of Ifill v Fischer, 72 AD3d 1367, 1368 [2010]). Turning to the merits, the Attorney General concedes, and we agree, that substantial evidence does not support that part of the determination finding petitioner guilty of making a false statement and providing unauthorized legal assistance (see Matter of Smith v Fischer, 87 AD3d 1198, 1199 [2011]; Matter of Gittens v New York State Dept. of Correctional Servs., 87 AD3d 1194, 1195 [2011]). On the other hand, petitioner pleaded guilty to violating facility correspondence procedures and is precluded from challenging the determination with regard to this charge (see Matter of Lamere v Fischer, 87 AD3d 768, 768 [2011]; Matter of Brown v Fischer, 73 AD3d 1362, 1363 [2010]). Consequently, that part of the determination finding petitioner guilty of making a false statement and providing unauthorized legal assistance must be annulled and, because a loss of good time was imposed, the matter must be remitted to the Commissioner of Corrections and Community Supervision for a redetermination of the penalty (see Matter of Dawes v Venettozzi, 87 AD3d 1219, 1220 [2011], lv denied ___ NY3d ___ [Jan. 10, 2012]; Matter of Nimmons v Fischer, 85 AD3d 1460, 1461 [2011]). In view of our disposition, petitioner's remaining contentions need not be addressed.

Mercure, Acting P.J., Lahtinen, Spain, Kavanagh and Garry, JJ., concur.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of making a false statement and providing unauthorized legal assistance and imposed a penalty; petition granted to that extent, the Commissioner of Corrections and Community Supervision is directed to expunge all references thereto from petitioner's institutional record and matter remitted to the Commissioner for an administrative redetermination of the penalty on the remaining violation; and, as so modified, confirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120202

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