Matter of Simmons v Prack

Matter of Simmons v Prack 2015 NY Slip Op 07895 Decided on October 29, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 29, 2015
520557

[*1]In the Matter of TERRY SIMMONS, Petitioner,

v

ALBERT PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: September 22, 2015
Before: Peters, P.J., McCarthy, Lynch and Devine, JJ.

Terry Simmons, Malone, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

MEMORANDUM AND JUDGMENT

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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner pleaded guilty to refusing a direct order, refusing to comply with frisk procedures, smuggling, possessing drugs and two counts of possessing contraband as charged in two misbehavior reports. After the penalty was modified by facility officials, the determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.

Initially, the Attorney General concedes, and we agree, that, because the charges of possession of contraband contained

in the misbehavior reports arose out of the same incident, the charge in the second misbehavior report is duplicative and should have been dismissed (see generally Matter of Cross v Annucci, 131 AD3d 758, 759 [2015]). Because a loss of good time was imposed as part of the penalty, the matter must be remitted to the Commissioner of Corrections and Community Supervision for a redetermination of the penalty on the remaining charges. Turning to the remaining charges, petitioner is precluded from challenging the determination as not supported by substantial evidence inasmuch as he pleaded guilty to those charges (see Matter of Smith v Annucci, 126 AD3d 1198, 1198 [2015]; Matter of Sanchez v Annucci, 126 AD3d 1194, 1194 [2015]). Finally, petitioner's contention that gaps in the hearing transcript rendered meaningful review insufficient is without merit (see Matter of Jamison v Fischer, 119 AD3d 1306, 1306-1307 [2014]).

Peters, P.J., McCarthy, Lynch and Devine, JJ., concur.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of one charge of possessing contraband and imposed a penalty; petition granted to that extent, the Commissioner of Corrections and Community Supervision is directed to expunge all references to this charge from petitioner's institutional record, and matter remitted to the Commissioner for an administrative redetermination of the penalty on the remaining violations; and, as so modified, confirmed.