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In re Jiminez

Supreme Court of New York, Third Department

June 20, 2013

In the Matter of PHILIP JIMINEZ, Petitioner,
v.
ALBERT PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: May 6, 2013

Philip Jiminez, Alden, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Before: Rose, J.P., Lahtinen, Stein and Egan Jr., JJ.

MEMORANDUM AND JUDGMENT

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, a prison inmate, was charged in a misbehavior report with smuggling and unauthorized legal assistance. At the ensuing tier III disciplinary hearing, petitioner pleaded guilty to smuggling and was found guilty of the remaining charge. Petitioner thereafter commenced this CPLR article 78 proceeding which solely challenges the determination of guilt as to the unauthorized legal assistance charge. Upon review, respondent concedes, and we agree, that the determination finding petitioner guilty of unauthorized legal assistance must be annulled and all references thereto expunged from petitioner's institutional record. In light of the fact that the penalty as to that charge has already been served and there was no loss of good time, there is no need to remit the matter for redetermination of the penalty (see Matter of Nieves v Venettozzi, 102 A.D.3d 1027, 1027 [2013], lv denied 21 N.Y.3d 852 [2013]).

Rose, J.P., Lahtinen, Stein and Egan Jr., JJ., concur.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of unauthorized legal assistance; 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.


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