Mohamed v. Prack

Hassan Mohamed, Beacon, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

Following a tier III disciplinary hearing, petitioner was found guilty of interference with an employee and making a third-party call. That determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

Initially, respondent concedes, and we agree, that the part of the determination finding petitioner guilty of interference with an employee is not supported by the record and, therefore, the determination must be annulled to that extent. However, petitioner has served the penalty and no loss of good time was imposed and, therefore, the matter does not need to be remitted (see Matter of Branch v. Annucci, 133 A.D.3d 942, 943, 18 N.Y.S.3d 567 2015; Matter of Edwards v. Annucci, 131 A.D.3d 770, 770, 14 N.Y.S.3d 598 2015 ). With regard to the charge of making a third-party call, the misbehavior report, related documentation, recording of the telephone conversation and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Sims v. Fischer, 131 A.D.3d 1314, 1315, 16 N.Y.S.3d 356 2015 ). Contrary to petitioner's contention, the error in the misbehavior report as to the time of the third-party call did not deprive him of notice of the charges against him nor did it render the misbehavior report invalid (see generally Matter of Sierra v. Fischer, 82 A.D.3d 1436, 1437, 918 N.Y.S.2d 682 2011; Matter of Arriaga v. Smith, 70 A.D.3d 1160, 1160, 898 N.Y.S.2d 271 2010 ). Any alleged inadequacies in the employee assistance was remedied by the Hearing Officer providing the assistant with the documentation at the hearing (see Matter of Lashway v. Fischer, 117 A.D.3d 1141, 1142, 984 N.Y.S.2d 655 2014 ). Furthermore, our review of the record establishes that the determination of guilt

flowed from the evidence presented and not from any alleged bias of the Hearing Officer ( see Matter of Horton v. Annucci, 133 A.D.3d 1002, 1003–1004, 20 N.Y.S.3d 207 2015; Matter of Reynolds v. LaClair, 89 A.D.3d 1338, 1339, 936 N.Y.S.2d 578 2011 ). Petitioner's remaining contentions, including that the misbehavior report was retaliatory in nature, have been reviewed and found to be without merit.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of interference with an employee; petition granted to that extent and the Commissioner of Corrections and Community Supervision is directed to expunge all references to this charge from petitioner's institutional record; and, as so modified, confirmed.

GARRY, J.P., EGAN JR., LYNCH and CLARK, JJ., concur.