Matter of Chisholm v Annucci

Matter of Chisholm v Annucci 2016 NY Slip Op 00567 Decided on January 28, 2016 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: January 28, 2016
520953

[*1]In the Matter of CHRISTOPHER CHISHOLM, Petitioner,

v

ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: December 8, 2015
Before: Peters, P.J., Garry, Lynch and Clark, JJ.

Christopher Chisholm, Auburn, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco 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 finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of nine charges stemming from three separate misbehavior reports. Respondent concedes, and we agree, that substantial evidence does not support the determination of guilt with respect to the third misbehavior report, which charged petitioner with smuggling and possessing a controlled substance. Accordingly, we annul that part of the determination, but need not remit the matter for a redetermination of the penalty given that petitioner has already

served the penalty and no loss of good time was imposed (see Matter of Branch v Annucci, 133 AD3d 942, 943 [2015]; Matter of Edwards v Annucci, 131 AD3d 770, 770 [2015]). Turning to the first and second misbehavior reports, we find that petitioner has abandoned any challenge to the findings of guilt with respect to the charges contained therein inasmuch as his brief is limited to challenging the third misbehavior report (see Matter of Robinson v Annucci, 122 AD3d 981, 982 [2014]; Matter of Carter v Fischer, 117 AD3d 1262, 1262 [2014]). Finally, petitioner's claim that he was denied a fair and impartial hearing is not substantiated by the record (see Matter of Canzater-Smith v Selsky, 28 AD3d 899, 900 [2006]).

Peters, P.J., Garry, Lynch and Clark, JJ., concur.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of smuggling and possessing a controlled substance as charged in the third misbehavior report; petition granted to that extent and respondent is directed to expunge all references to these charges from petitioner's institutional record; and, as so modified, confirmed.