Brown v. New York State Department of Corrections & Community Supervision

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 finding petitioner guilty of violating certain prison disciplinary rules. Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of possessing contraband not authorized by the superintendent, possessing an authorized item that has been altered and tampering with an electrical device. Initially, respondents concede, and we agree, that the misbehavior report did not provide petitioner with adequate notice with regard to the charges of possessing an authorized item that has been altered and tampering with an electrical device. Accordingly, we annul the determination to that extent but remittal for a redetermination of the penalty is unnecessary because the penalty has been completed and no loss of good time was imposed (see Matter of Branch v Annucci, 133 AD3d 942, 943 [2015]; Matter of Macedonio v Fischer, 116 AD3d 1313, 1313 [2014]). Turning to the remaining charge, the misbehavior report noting the numerous items of contraband discovered in petitioner’s cell and petitioner’s testimony provide substantial evidence to support the finding that petitioner possessed contraband (see Matter of Macedonio v Fischer, 116 AD3d at 1313). Lahtinen, J.P., McCarthy, Lynch, Clark and Aarons, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of possessing an authorized item that has been altered and tampering with an electrical device; petition granted to that extent and the Superintendent of Eastern Correctional Facility is directed to expunge all references to those charges from petitioner’s institutional record; and, as so modified, confirmed.