Matter of Belot v Selsky

Matter of Belot v Selsky 2008 NY Slip Op 08569 [56 AD3d 911] November 13, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

In the Matter of Jean Belot, Jr., Petitioner, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

—[*1] Jean Belot, Jr., Pine City, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

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 Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in two misbehavior reports with various prison disciplinary rule violations as a result of certain events that occurred in the law library on July 25, 2006. In the first misbehavior report, petitioner was charged with refusing a direct order and misusing state property after he ignored a correction officer's directive restricting his use of the law library computer to legal work and prepared a draft proposal detailing computer problems that he intended to submit to the Superintendent of the facility. In the second misbehavior report, petitioner was charged with harassment, lying and stealing state property after he became involved in an argument with a correction officer over his alleged failure to return certain items to the law library. Following a tier III disciplinary hearing, petitioner was found guilty of the charges. The penalty was subsequently modified and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

Initially, respondent concedes and we agree, upon reviewing the record, that substantial [*2]evidence does not support that part of the determination finding petitioner guilty of lying and stealing state property as charged in the second misbehavior report. Accordingly, that part of the determination must be annulled and all references thereto expunged from petitioner's institutional record (see Matter of Rodriguez v Selsky, 48 AD3d 851, 852 [2008]; Matter of Wan Zhang v Murphy, 1 AD3d 784, 784 [2003]). Nevertheless, inasmuch as no loss of good time was imposed and petitioner has already served the penalty, the matter need not be remitted for a reassessment of the penalty (see Matter of Sloane v McKinney, 48 AD3d 850, 850 [2008]; Matter of Rizzuto v Goord, 36 AD3d 1124, 1124 [2007]).

Turning to the remaining charges, the misbehavior reports, documentary evidence and testimony at the hearing provide substantial evidence supporting the Commissioner's determination (see Matter of Green v Goord, 26 AD3d 562, 563 [2006]). Petitioner's claim that the misbehavior report was written in retaliation for his filing of a grievance presented a credibility issue for the Hearing Officer to resolve (see Matter of Williams v Selsky, 50 AD3d 1426 [2008], lv denied 11 NY3d 703 [2008]; Matter of Salahuddin v Goord, 49 AD3d 1107 [2008], lv denied 10 NY3d 717 [2008]).

His remaining contentions, including his claim that the Hearing Officer was biased, have been considered and found to be lacking in merit.

Cardona, P.J., Mercure, Spain, Lahtinen and Kavanagh, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of lying and stealing state property; petition granted to that extent and the Commissioner of Correctional Services is directed to expunge all references thereto from petitioner's institutional record; and, as so modified, confirmed.