Matter of Newman v Department of Corr. Servs.

Matter of Newman v Department of Corr. Servs. 2013 NY Slip Op 06919 Decided on October 24, 2013 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 24, 2013
516246

[*1]In the Matter of JOHN NEWMAN, Petitioner,

v

DEPARTMENT OF CORRECTIONAL SERVICES, Respondent.

Calendar Date: September 18, 2013
Before: Peters, P.J., Rose, Spain and Egan Jr., JJ.


John Newman, 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 Albany County) to review a determination of the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, agreed to refrain from possessing sexually explicit material in order to participate in the sex offender counseling and treatment program. He thereafter admitted to possessing several books with graphic sexual content after he had agreed not to do so and, accordingly, was charged in a misbehavior report with refusing to obey a direct order, possessing unauthorized literature and possessing contraband. Petitioner was found guilty as charged after a tier III disciplinary hearing, and the determination was administratively affirmed. The present CPLR article 78 proceeding followed.

Substantial evidence, in the form of the misbehavior report and petitioner's hearing testimony, supports that part of the determination finding him guilty of possessing unauthorized literature and contraband (see Matter of Sierra v Fischer, 82 AD3d 1436, 1437 [2011]). Respondent concedes, and we agree, that the record does not similarly support the remaining segment of the determination finding petitioner guilty of refusing a direct order (see Matter of Sierra v Fischer, 82 AD3d at 1437). We accordingly annul that part of the determination and, inasmuch as a loss of good time was recommended, remit the matter so that the Commissioner of Corrections and Community Supervision may reassess the penalty on the extant charges [*2](see Matter of Gittens v New York State Dept. of Correctional Servs., 87 AD3d 1194, 1195 [2011]).

Peters, P.J., Rose, Spain and Egan Jr., JJ., concur.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of refusing a direct order 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 a redetermination of the penalty imposed on the remaining violations; and, as so modified, confirmed.