Opinion
No. 508238.
May 27, 2010.
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 Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
John L. Platten, Rome, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Mercure, J.P., Peters, Spain, Kavanagh and Stein, JJ.
Petitioner, a prison inmate, engaged in a conversation with his wife while on work detail as a groundskeeper and later lied about the incident to a correction officer. As a result, petitioner received a misbehavior report charging him with unauthorized communication with a member of the public while on outside work detail, providing false statements and leaving his assigned area. During a tier III disciplinary hearing, petitioner pleaded guilty to the first two charges and was subsequently found guilty of the third. That determination was upheld on administrative appeal and petitioner commenced this CPLR article 78 proceeding.
Petitioner does not contest the determination with respect to the two charges to which he pleaded guilty and, inasmuch as the Attorney General concedes that there was insufficient evidence to sustain the charge that he left his assigned area, we annul the determination to that extent and direct that all references thereto be expunged from petitioner's institutional record ( see Matter of Foster v Bezio, 62 AD3d 1222, 1223). Because the original penalty imposed included a recommended loss of good time, the matter must be remitted to the Commissioner of Correctional Services for a reassessment of the penalty relative to the remaining charges ( see Matter of Argentina v Bezio, 69 AD3d 1287, 1288, lv denied ___ NY3d ___, 2010 NY Slip Op 70585; Matter of Pitt v Dubray, 62 AD3d 1101, 1101 n [2009], lv denied 13 NY3d 706).
Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of leaving his assigned area and imposed a penalty; petition granted to that extent, the Commissioner of Correctional Services is directed to expunge all references thereto from petitioner's institutional record and matter remitted to the Commissioner of Correctional Services for an administrative redetermination of the penalty on the remaining violations; and, as so modified, confirmed.