Rohan Brown, Napanoch, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of the Superintendent of Eastern Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.
After 12 empanadas were discovered hidden in petitioner's bag during a search at the yard gate, petitioner was charged in a misbehavior report with smuggling and theft of state property. At the ensuing tier II disciplinary hearing, petitioner pleaded guilty to the smuggling charge and was found guilty of the theft of state property charge. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
Initially, respondents concede, and we agree upon reviewing the record, that the part of the determination finding petitioner guilty of theft of state property is not supported by substantial evidence. As such, that part of the determination must be annulled. Given that petitioner has already served the penalty and a loss of good time was not imposed, the matter need not be remitted for a reassessment of the penalty ( see Matter of Smith v. Fischer, 87 A.D.3d 1198, 1199, 929 N.Y.S.2d 503 [2011] ). However, the $18 surcharge ordered in connection with that part of the determination must be refunded. Regarding the charge of smuggling, petitioner's guilty plea precludes him from challenging the determination of guilt with respect to that charge ( see Matter of Flores v. Fischer, 110 A.D.3d 1302, 1302, 973 N.Y.S.2d 485 [2013],lv. denied22 N.Y.3d 861, 2014 WL 552669 [2014] ).
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of theft of state property; the Superintendent of Eastern Correctional Facility is directed to expunge all references to this charge from petitioner's institutional record and to reimburse the $18 surcharge to petitioner; and, as so modified, confirmed. LAHTINEN, J.P., STEIN, GARRY, ROSE and EGAN JR., JJ., concur.