Matter of Small v State of New York

Matter of Small v State of New York 2019 NY Slip Op 02935 Decided on April 18, 2019 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: April 18, 2019
526794

[*1]In the Matter of SAMUEL SMALL, Petitioner,

v

STATE OF NEW YORK, Respondent.

Calendar Date: March 15, 2019
Before: Garry, P.J., Egan Jr., Aarons, Rumsey and Pritzker, JJ.

Samuel Small, Attica, petitioner pro se.

Letitia James, Attorney General, Albany (Martin A. Hotvet 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 finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging a tier III determination finding him guilty of violating certain prison disciplinary rules. The Attorney General has advised this Court that the determination has been administratively reversed, all references thereto have been expunged from petitioner's institutional record and the mandatory $5 surcharge has been refunded to petitioner's inmate account. To the extent that petitioner seeks to be restored to the status that he enjoyed prior to the disciplinary determination, he is not entitled to such relief (see Matter of Boeck v Annucci, 165 AD3d 1334, 1334 [2018]; Matter of Herbert v Venettozzi, 162 AD3d 1454, 1455 [2018]). However, the record establishes that the penalty imposed included a six-month loss of good time, and, although not referenced by the Attorney General's letters, "the loss of . . . good time incurred by petitioner as a result of the determination should be restored" (Matter of Chavez v Annucci, 168 AD3d 1332, 1332 [2019]). As petitioner otherwise has obtained all of the relief to which he is entitled, the petition must be dismissed as moot (see Matter of Ortiz v Venettozzi, 167 AD3d 1200, 1201 [2018]; Matter of Adams v Annucci, 167 AD3d 1125, 1126 [2018]).

Garry, P.J., Egan Jr., Aarons, Rumsey and Pritzker, JJ., concur.

ADJUDGED that the petition is dismissed, as moot, without costs.