Calendar Date: December 17, 2012
Before: Peters, P.J., Mercure, Rose, Stein 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner commenced this CPLR article 78 proceeding to review a determination finding him guilty of having violated certain prison disciplinary rules. The detailed misbehavior report and the testimony of the correction officer who authored it provide substantial evidence to support that part of the determination finding petitioner guilty of being out of place (see Matter of Povoski v Fischer, 93 AD3d 963, 964 , appeal dismissed 19 NY3d 1020 ; Matter of Jackson v Smith, 49 AD3d 933, 933 ). Petitioner's assertion that he had permission to be in the area where he was found created a credibility issue for the Hearing Officer to resolve (see Matter of Povoski v Fischer, 93 AD3d at 964). Respondent concedes, however, and we agree, that the determination finding petitioner guilty of making false statements must be annulled. Inasmuch as petitioner has already served the penalty imposed and no loss of good time was involved, remittal to redetermine the penalty is unnecessary (see Matter of Franza v Venettozzi, 98 AD3d 782, 782-783 ).
Petitioner's remaining contentions, to the extent they are properly before us, are without merit.
Peters, P.J., Mercure, Rose, Stein and McCarthy, JJ., concur.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of making false statements; petition granted to that extent and the Commissioner of Corrections and Community Supervision 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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