Ortiz v. Selsky

Mercure, J. P. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner, a prison inmate, was charged in two misbehavior reports with possessing a weapon, refusing a direct order, assaulting an inmate, fighting, engaging in violent conduct and creating a disturbance. The charges stem from allegations that petitioner cut another inmate’s throat with a razor blade and refused a direct order to stop the altercation. Petitioner was found guilty of all charges following a tier III disciplinary hearing on both reports. The determination was reversed on administrative appeal and the matter was remitted for a new hearing, following which petitioner was found guilty of all charges except creating a disturbance. Petitioner subsequently commenced this CPLR article 78 proceeding challenging the determination. Although petitioner has abandoned the substantial evidence question that brought about the transfer to this court and only challenges the penalty imposed following the rehearing, we will nonetheless retain the matter and address petitioner’s argument in the interest of judicial economy (see, Matter of Mafuz v Goord, 260 AD2d 806, n). While the penalty imposed following the rehearing impermissibly exceeded the original penalty (see, 7 NYCRR 254.8 [d]; see also, Matter of Patsalos v Coombe, 228 AD2d 984, 986), our review of the record reveals that this error was corrected upon administrative appeal and the penalty is no longer harsher than that imposed after the original hearing. Accordingly, the proceeding must be dismissed as moot (see, Matter of Valera v Selsky, 185 AD2d 481). Peters, Spain, Rose and Lahtinen, JJ., concur. Adjudged that the petition is dismissed, as moot, without costs.