La Banca v. Goord

Petitioner challenges a tier III disciplinary determination which found him guilty of violating facility correspondence procedures, refusing to obey a direct order and conspiring to introduce controlled substances into the facility. By pleading guilty at his disciplinary hearing to the first two charges, petitioner is precluded from challenging the determination of his guilt thereof on substantial evidence grounds (see Matter of Jones v Goord, 274 AD2d 902, 903; Matter of Goodson v Murphy, 273 AD2d 583). To the extent that petitioner alleges that procedural errors violated his due process rights, these contentions have been reviewed and found to lack merit. The focus of our review is, accordingly, on that part of the determination which found petitioner guilty of violating the prison disciplinary rule prohibiting conspiracy to introduce controlled substances into a correctional facility. Respondents concede that there is insufficient evidence to support the finding that petitioner is guilty of this charge (see Matter of Delgado v Hurlhurt, 279 AD2d 734). Hence, the determination with respect to the conspiracy charge is annulled and the matter is remitted for the imposition of an appropriate penalty, petitioner having previously been sanctioned for this violation with the loss of 12 months’ good time (see Matter of Gittens v Goord, 249 AD2d 622; see also Matter of Simmons v Goord, 255 AD2d 939, 940). Peters, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of conspiring to introduce controlled substances into a correctional facility and imposed a penalty; petition granted to that extent, respondent Commissioner of Correctional Services is directed to expunge all references thereto from petitioner’s institutional record, and matter remitted to said respondent for further proceedings not inconsistent with this Court’s decision; and, as so modified, confirmed.