Opinion
91299
September 19, 2002.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
Jay La Banca, Pine City, petitioner pro se.
Eliot Spitzer, Attorney General, Albany (Wayne L. Benjamin of counsel), for respondents.
Before: Peters, J.P., Mugglin, Rose, Lahtinen and Kane, JJ.
MEMORANDUM AND JUDGMENT
Petitioner challenges a tier III disciplinary determination which found him guilty of violating facility correspondence procedures, refusing to obey a direct order and conspiring to introduce controlled substances into the facility. By pleading guilty at his disciplinary hearing to the first two charges, petitioner is precluded from challenging the determination of his guilt thereof on substantial evidence grounds (see Matter of Jones v. Goord, 274 A.D.2d 902, 903; Matter of Goodson v. Murphy, 273 A.D.2d 583) . To the extent that petitioner alleges that procedural errors violated his due process rights, these contentions have been reviewed and found to lack merit.
The focus of our review is, accordingly, on that part of the determination which found petitioner guilty of violating the prison disciplinary rule prohibiting conspiracy to introduce controlled substances into a correctional facility. Respondents concede that there is insufficient evidence to support the finding that petitioner is guilty of this charge (see Matter of Delgado v. Hurlburt, 279 A.D.2d 734). Hence, the determination with respect to the conspiracy charge is annulled and the matter is remitted for the imposition of an appropriate penalty, petitioner having previously been sanctioned for this violation with the loss of 12 months' good time (see Matter of Gittens v. Goord, 249 A.D.2d 622; see also Matter of Simmons v. Goord, 255 A.D.2d 939, 940).
Peters, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of conspiring to introduce controlled substances into a correctional facility and imposed a penalty; petition granted to that extent, respondent Commissioner of Correctional Services is directed to expunge all references thereto from petitioner's institutional record, and matter remitted to said respondent for further proceedings not inconsistent with this Court's decision; and, as so modified, confirmed.