MatterofBrownvNewYorkStateDepartmentofCorrectionsandCommunitySupervision

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: July 17, 2014 518044 ________________________________

In the Matter of ROHAN BROWN, Petitioner, v

NEW YORK STATE DEPARTMENT OF MEMORANDUM AND JUDGMENT CORRECTIONS AND COMMUNITY SUPERVISION et al., Respondents. ________________________________

Calendar Date: June 9, 2014 Before: Lahtinen, J.P., Stein, Garry, Rose and Egan Jr., JJ.

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Rohan Brown, Napanoch, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.

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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of the Superintendent of Eastern Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

After 12 empanadas were discovered hidden in petitioner's bag during a search at the yard gate, petitioner was charged in a misbehavior report with smuggling and theft of state property. At the ensuing tier II disciplinary hearing, petitioner pleaded guilty to the smuggling charge and was found guilty of the theft of state property charge. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

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Initially, respondents concede, and we agree upon reviewing the record, that the part of the determination finding petitioner guilty of theft of state property is not supported by substantial evidence. As such, that part of the determination must be annulled. Given that petitioner has already served the penalty and a loss of good time was not imposed, the matter need not be remitted for a reassessment of the penalty (see Matter of Smith v Fischer, 87 AD3d 1198, 1199 [2011]). However, the $18 surcharge ordered in connection with that part of the determination must be refunded. Regarding the charge of smuggling, petitioner's guilty plea precludes him from challenging the determination of guilt with respect to that charge (see Matter of Flores v Fischer, 110 AD3d 1302, 1302 [2013], lv denied 22 NY3d 861 [2014]).

Lahtinen, J.P., Stein, Garry, Rose and Egan Jr., JJ., concur.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of theft of state property; the Superintendent of Eastern Correctional Facility is directed to expunge all references to this charge from petitioner's institutional record and to reimburse the $18 surcharge to petitioner; and, as so modified, confirmed.

ENTER:

Robert D. Mayberger Clerk of the Court