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The People of the State of New York ex rel. Donnell Bridges v. Harold J. Smith, as Superintendent of Attica Correctional Facility
Judgment unanimously modified and, as modified, affirmed, in accordance with the following memorandum: To the extent that relator admitted at the hearing that he did not stand for the count, the judgment is affirmed. Inasmuch as the remaining charges were based solely upon the written misbehavior report prepared by the correction officer, they must be dismissed as there is no substantial evidence to support them (see People ex rel. Corcoran v Smith, 105 AD2d 1142).
The matter is converted from a habeas corpus proceeding to a CPLR article 78 proceeding (see People ex rel. Corcoran v Smith, supra) and is remitted to respondent for reconsideration of the penalty to be imposed on the admitted charge (see Matter of Jennings v Coughlin, 99 AD2d 635). (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J. — habeas corpus.) Present — Hancock, Jr., J. P., Callahan, Denman, Boomer and Moule, JJ.