Matter of Butler v Fischer

Matter of Butler v Fischer 2009 NY Slip Op 07916 [67 AD3d 1112] November 5, 2009 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

In the Matter of Jamal Butler, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] Jamal Butler, Malone, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Following a fight involving 17 inmates in the prison yard, petitioner was charged in a misbehavior report with fighting, engaging in violent conduct and failing to report an injury after he was discovered with lacerations to his left forearm and the right side of his head. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. His administrative appeal was unsuccessful and petitioner thereafter commenced this CPLR article 78 proceeding.

Initially, respondent concedes and we agree that the record does not support the charges against petitioner for fighting and engaging in violent conduct and, thus, the determination must be annulled to that extent with all references thereto expunged from petitioner's institutional record (see Matter of Covington v Smith, 63 AD3d 1453 [2009], lv denied 13 NY3d 709 [2009]; Matter of Daum v Goord, 27 AD3d 858, 858-859 [2006]). Inasmuch as no loss of good time was imposed, the matter need not be remitted to respondent to redetermine the penalty (see Matter of Covington v Smith, 63 AD3d at 1453; Matter of Daum v Goord, 27 AD3d at 859).

However, with regard to the charge of failing to report an injury, we find that the detailed misbehavior report, hearing testimony, pictures of petitioner's injuries and his [*2]admissions during the hearing provide substantial evidence to support this finding of guilt (see Matter of Pertillar v Fischer, 64 AD3d 1029, 1030 [2009]; Matter of Davis v Fischer, 64 AD3d 847, 848 [2009], lv denied 13 NY3d 709 [2009]).

Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of fighting and engaging in violent conduct; petition granted to that extent and respondent is directed to expunge all references thereto from petitioner's institutional record; and, as so modified, confirmed.