Opinion
03-10-2016
In the Matter of Jermain BOYKIN, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Jermain Boykin, Elmira, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Jermain Boykin, Elmira, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco 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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with soliciting, providing false information, possession of contraband, possession of stolen property and violation of telephone procedures. The charges stem from an investigation and search of petitioner's cell that uncovered various tax documents containing false information suggestive of a scheme to file fraudulent income tax returns. Also obtained during the investigation were telephone recordings of petitioner to a woman wherein they discussed tax forms and her contacting the Internal Revenue Service. Petitioner was initially found guilty of all charges except possession of stolen property but, due to the Hearing Officer's failure to independently assess the reliability and credibility of the confidential information, that determination was administratively reversed and a rehearing ordered. Following the rehearing, petitioner was again found guilty of all charges with the exception of possession of stolen property. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. Petitioner's claim that it was error for the Commissioner of Corrections and Community Supervision to order a rehearing, and not expungement, of the charges is without merit. “[W]here, as here, the procedural errors in the first hearing are discovered before a final administrative determination is rendered, a new hearing to correct such errors is proper, even where the errors are of constitutional dimension” (Matter of Pabon v. Coombe, 249 A.D.2d 629, 629, 670 N.Y.S.2d 813 [1998] [internal quotation marks and citation omitted]; see Matter of Hughes v. Bedard, 117 A.D.3d 1246, 1247, 984 N.Y.S.2d 887 [2014]; Matter of Murray v. Scully, 170 A.D.2d 829, 831, 565 N.Y.S.2d 631 [1991], lv. denied 78 N.Y.2d 856, 574 N.Y.S.2d 937, 580 N.E.2d 409 [1991] ). Petitioner's remaining challenges to the initial determination of guilt are moot insofar as that determination was administratively reversed (see Matter of Hamilton v. Selsky, 13 A.D.3d 844, 845, 785 N.Y.S.2d 811 [2004], lv. denied 5 N.Y.3d 704, 801 N.Y.S.2d 1, 834 N.E.2d 780 [2005] ).
To the extent that petitioner argues that the determination at issue is not supported by substantial evidence, the misbehavior report, related documentary evidence, telephone recordings, confidential information and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Best v. Larkin, 116 A.D.3d 1306, 1307, 983 N.Y.S.2d 910 [2014] ). Furthermore, petitioner's contention that the Hearing Officer erred in failing to consider testimony from the first hearing is without merit. Any inconsistencies as to the reason for the commencement of the investigation was irrelevant to the charges (see Matter of Covington v. Harford, 105 A.D.3d 1289, 1290, 963 N.Y.S.2d 610 [2013], lv. denied 21 N.Y.3d 862, 972 N.Y.S.2d 219, 995 N.E.2d 182 [2013]; Matter of Sweeter v. Coughlin, 221 A.D.2d 741, 741, 633 N.Y.S.2d 649 [1995] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., McCARTHY, ROSE and DEVINE, JJ., concur.