Opinion
February 16, 1995
Appeal from the Supreme Court, Ulster County.
Petitioner was found guilty after a disciplinary hearing of violating State-wide rules prohibiting unauthorized solicitation of goods, unauthorized exchange of personal items, possession of contraband, solicitation of smuggling and unauthorized provision of legal assistance for compensation. The misbehavior report states that, while conducting an "area frisk" of petitioner's desk at the law library, the author found an order form for clothing in the name of an inmate Lopez among the legal papers of Lopez, that the clothing subsequently arrived at the facility and that a search of petitioner's cell disclosed the presence of the clothing in his cell. Petitioner pleaded guilty to the charge of unauthorized exchange of personal items. Further, in his testimony at his disciplinary hearing petitioner conceded that he had performed legal work for Lopez and assisted him in filling out the order form, and gave no credible explanation for his possession of the ordered clothing.
We conclude that these facts and the reasonable inferences to be drawn therefrom provide substantial evidence to support the findings of guilt as to the charges of unauthorized exchange of personal items and unauthorized provision of legal work for compensation. We also agree with respondent's concession that the evidence does not support the findings of guilt as to the three other charges. Finally, given that petitioner has already served his penalty of loss of privileges and detention in the special housing unit for 30 days and that there was no recommended loss of good time, there is no need to remit for administrative reconsideration of the penalty imposed.
Cardona, P.J., Mercure, Casey, Peters and Spain, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of violating prison disciplinary rules 103.20, 113.23 and 114.10; respondent is directed to expunge from petitioner's institutional record all references thereto; and, as so modified, confirmed.