Opinion
06-23-2016
In the Matter of Terry ANDERSON, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Terry Anderson, Ogdensburg, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.
Terry Anderson, Ogdensburg, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.
Opinion 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 respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with fighting, engaging in violent conduct, lying and failing to promptly report an injury after a confidential source accused petitioner of having been involved in a fight with another inmate. At a tier III disciplinary hearing, petitioner pleaded guilty to the charge of failing to promptly report an injury and otherwise pleaded not guilty. At the conclusion of the hearing, petitioner was found guilty as charged, and this CPLR article 78 proceeding ensued.
Initially, because petitioner pleaded guilty to the charge of failing to promptly report an injury, he is precluded from challenging the evidence supporting that part of the determination finding him guilty of this charge (see Matter of Rodriguez v. Fischer, 138 A.D.3d 1328, 1329, 28 N.Y.S.3d 636, 636 [2016]; Matter of Abrahams v. Annucci, 134 A.D.3d 1368, 1369, 21 N.Y.S.3d 766 [2015] ). With respect to the remaining three charges, the Attorney General concedes, and we agree, that substantial evidence does not support petitioner's guilt of these charges, as the Hearing Officer failed to independently assess the reliability of the confidential information (see Matter of Bridge v. Annucci, 132 A.D.3d 1197, 1197–1198, 19 N.Y.S.3d 607 [2015] ; Matter of Kim v. Annucci, 128 A.D.3d 1196, 1197, 8 N.Y.S.3d 495 [2015] ). Accordingly, the finding of guilt with respect to the charges of fighting, engaging in violent conduct and lying must be annulled. However, inasmuch as petitioner has served the penalty and no loss of good time was imposed, the matter need not be remitted for a redetermination of the penalty (see Matter of Mohamed v. Prack, 137 A.D.3d 1402, 1402, 25 N.Y.S.3d 918 [2016] ; Matter of Kim v. Annucci, 128 A.D.3d at 1198, 8 N.Y.S.3d 495 ).
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of fighting, engaging in violent conduct and lying; petition granted to that extent and respondent is directed to expunge all references to these charges from petitioner's institutional record; and, as so modified, confirmed.
PETERS, P.J., LAHTINEN, McCARTHY, LYNCH and DEVINE, JJ., concur.