Opinion
531897
01-28-2021
In the Matter of William WRIGHT, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
William Wright, Cape Vincent, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
William Wright, Cape Vincent, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Lynch, J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.
MEMORANDUM AND JUDGMENT
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with possessing contraband, smuggling, making a false statement, violating telephone program procedures and violating facility correspondence procedures. The charges stem from an investigation and a search of petitioner's cell prompted by the opening of a letter that was received at the correctional facility, addressed to petitioner. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. Upon administrative appeal, that determination was modified by dismissing the charges of possessing contraband and smuggling but was otherwise affirmed. Petitioner then commenced this CPLR article 78 proceeding.
Initially, we note that respondent concedes, and our review of the record confirms, that substantial evidence does not support the finding of guilty with respect to the charges of making a false statement and violating facility telephone procedures. Accordingly, we annul that part of the determination, but do not need to remit the matter for a redetermination of the penalty because the penalty has been completed and no loss of good time was imposed (see Matter of Briggs v. Lilley, 181 A.D.3d 1088, 1089, 117 N.Y.S.3d 895 [2020] ).
As for the remaining charge of violating facility correspondence procedures, we find that the misbehavior report noting that two letters confiscated from petitioner's cell were from an individual who was on parole – one of which included the individual's jail phone number – along with petitioner's admission that he corresponded with that individual provide substantial evidence to support the determination of guilt (see 7 NYCRR 720.3 [b][2]; Matter of Lewis v. Annucci, 156 A.D.3d 1015, 1016, 66 N.Y.S.3d 82 [2017] ; Matter of Selby v. Coombe, 249 A.D.2d 635, 636, 670 N.Y.S.2d 814 [1998] ). Petitioner's contention that he was unaware that the individual was on parole created a credibility issue for the Hearing Officer to resolve and, in any event, petitioner's "purported ignorance did not absolve him of guilt" ( Matter of Govia v. New York State Dept. of Corr. & Community Supervision, 171 A.D.3d 1323, 1324, 98 N.Y.S.3d 650 [2019] ). To the extent that petitioner asserts that the search of his cell, which uncovered the letters from the individual on parole, was improper, we note that "the basis for the search in the first instance was irrelevant to the issue of whether petitioner possessed the [unauthorized correspondence]" ( Matter of Bonds v. Annucci, 166 A.D.3d 1250, 1251, 89 N.Y.S.3d 730 [2018] [internal quotation marks and citation omitted]; see Matter of Macedonio v. Annucci, 142 A.D.3d 1215, 1215, 37 N.Y.S.3d 359 [2016] ; Matter of Sweeter v. Coughlin, 221 A.D.2d 741, 741, 633 N.Y.S.2d 649 [1995] ). We have reviewed petitioner's remaining contentions and find them to be without merit.
Lynch, J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of making a false statement and violating facility telephone procedures; 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.