Tafari v. Annucci

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

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

A correction official intercepted a letter that petitioner attempted to send to a street address that was on his negative correspondence list. His former mother-in-law resided at that street address and had lodged a complaint with the correctional facility that petitioner had been harassing her with threatening letters. The negative correspondence list stated that it applied to “anyone at this address.” The named addressee was petitioner's ex-wife who resided at the same street address as petitioner's former mother-in-law, although in a different apartment. The substance of the letter contained derogatory and threatening language. As a result of this incident, petitioner was charged in a misbehavior report with violating facility correspondence procedures, making threats, engaging in harassment, stalking and refusing a direct order. He was found guilty of the charges following a tier III

disciplinary hearing. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

Initially, respondent concedes and we agree that substantial evidence does not support that part of the determination finding petitioner guilty of refusing a direct order (see Matter of Marino v. Martuscello, 131 A.D.3d 749, 749, 14 N.Y.S.3d 589 2015, lv. denied 26 N.Y.3d 910, 2015 WL 6457385 2015; Matter of Pulecio v. Fischer, 109 A.D.3d 1068, 1069, 971 N.Y.S.2d 380 2013, lv. denied 22 N.Y.3d 858, 2014 WL 112692 2014 ). We reach a different conclusion, however, with regard to the remainder of the determination. The misbehavior report, documentary evidence and hearing testimony provide substantial evidence supporting the determination finding petitioner guilty of violating facility correspondence procedures, making threats, engaging in harassment and stalking (see Matter of Douglas v. Fischer, 104 A.D.3d 981, 960 N.Y.S.2d 263 2013; Matter of Kairis v. Fischer, 54 A.D.3d 462, 463, 862 N.Y.S.2d 646 2008 ). Inasmuch as a loss of good time was imposed as part of the penalty and that part of the determination finding petitioner guilty of refusing a direct order must be annulled, the matter must be remitted to respondent for a redetermination of the penalty on the remaining violations (see Matter of Hyatt v. Fischer, 116 A.D.3d 1263, 1264, 983 N.Y.S.2d 741 2014; Matter of Merritt v. Fischer, 108 A.D.3d 993, 994, 969 N.Y.S.2d 248 2013 ).

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of refusing a direct order and imposed a penalty; petition granted to that extent, respondent is directed to expunge all references to this charge from petitioner's institutional record and matter remitted to respondent for an administrative redetermination of the penalty on the remaining violations; and, as so modified, confirmed.

GARRY, J.P., ROSE, LYNCH and CLARK, JJ., concur.