Matter of Hynes v Fischer

Matter of Hynes v Fischer 2012 NY Slip Op 08594 Decided on December 13, 2012 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: December 13, 2012
514079

[*1]In the Matter of CHRIS HYNES, Petitioner,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: October 29, 2012
Before: Peters, P.J., Lahtinen, Malone Jr., Kavanagh and McCarthy, JJ.


Christopher Hynes, Attica, 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 Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found to be in possession of what were purportedly the legal papers of four other inmates during a cell frisk, and was charged in a misbehavior report with possessing contraband and providing unauthorized legal assistance. He was found guilty as charged following a tier III disciplinary hearing, and the determination was upheld upon administrative appeal. This CPLR article 78 proceeding ensued.

Respondent initially concedes, and we agree, that the determination cannot be sustained insofar as petitioner was found guilty of providing unauthorized legal assistance. Because petitioner has not fully served that portion of the penalty barring him from serving as a representative upon the Inmate Grievance Resolution Committee for three years, we accordingly remit this matter so that respondent may reconsider the penalty imposed (see Matter of Hernandez v Smith, 52 AD3d 1134, 1134 [2008]). [*2]

Turning to the contraband charge, petitioner possessed the papers in question and, given proof that he was not specifically authorized to do so, substantial evidence exists to support the determination of guilt (see Matter of McCollum v Fischer, 61 AD3d 1194, 1194 [2009], lv denied 13 NY3d 703 [2009]; Matter of Jenkins v Senkowski, 221 AD2d 779 [1995]). Further, there is no dispute as to the content of the offending papers — which were described at length at the disciplinary hearing — and we do not view their absence from the record to be so "material to the determination []or of such significance as to preclude meaningful review" (Matter of Rodriguez v Coughlin, 167 AD2d 671, 671 [1990]; see Matter of Boyce v Coughlin, 191 AD2d 936, 937 [1993], lv denied 82 NY2d 651 [1993]). Petitioner's remaining argument, to the extent that it has not been rendered academic in light of the foregoing, has been considered and rejected.

Peters, P.J., Lahtinen, Malone Jr., Kavanagh and McCarthy, JJ., concur.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of providing unauthorized legal assistance and imposed a penalty; petition granted to that extent, respondent is directed to expunge all references thereto from petitioner's institutional record and matter remitted to respondent for an administrative redetermination of the penalty imposed on the remaining violation; and, as so modified, confirmed.