Lashway v. Brown

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was found guilty of violating the prison disciplinary rules prohibiting inmates from possessing contraband, counterfeiting a document and making a threat. Initially, we note that the Attorney General concedes, and our review of the record confirms, that there is insufficient evidence to support that part of the determination finding petitioner guilty of pos 736 sessing contraband and counterfeiting. Accordingly, these charges must be annulled and expunged from petitioner’s institutional record (see, Matter of Diaz v Goord, 263 AD2d 630; Matter of Smythe v McClellan, 226 AD2d 840, 842). Turning to the remaining charges, we find that the misbehavior report, together with the information provided by a confidential informant, constitute substantial evidence to support the charge of threatening a correction officer (see, Matter of Abdur-Raheem v Mann, 85 NY2d 113, 119). Moreover, we are unpersuaded by petitioner’s contention that the hearing was untimely. Notwithstanding petitioner’s assertion, the seven-day rule is inapplicable (see, 7 NYCRR 251-5.1 [a]) because the record discloses that at the time of the incident, petitioner was already in restrictive confinement on an unrelated matter (see, Matter of Headley v Goord, 274 AD2d 714; Matter of Nelson v Selsky, 239 AD2d 795). Petitioner’s remaining arguments are unpreserved for our review and, in any event, are lacking in merit. Cardona, P. J., Crew III, Carpinello, Mugglin and Rose, JJ., concur. Adjudged that the determination is modified, on the law, without costs, by annulling so much thereof as found petitioner guilty of the charges of possessing contraband and counterfeiting; petition granted to that extent, respondents are directed to expunge all references thereto from petitioner’s institutional record; and, as so modified, confirmed.