Johnson v. Lempke

• Decision Date: 18 November 2016
• Citation: 2016 N.Y. Slip Op. 07801,144 A.D.3d 1677,42 N.Y.S.3d 702
• Parties: In the Matter of Leroy JOHNSON, Petitioner, v. John B. LEMPKE, Superintendent, Wende Correctional Facility, Respondent.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1677
42 N.Y.S.3d 702
2016 N.Y. Slip Op. 07801

In the Matter of Leroy JOHNSON, Petitioner,
v.
John B. LEMPKE, Superintendent, Wende Correctional Facility, Respondent.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 18, 2016.

42 N.Y.S.3d 703

Leroy Johnson, Petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent.

PRESENT: CARNI, J.P., DeJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.

MEMORANDUM:

144 A.D.3d 1677

Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier II disciplinary hearing, that he violated various inmate rules. Respondent correctly concedes that the determination that

144 A.D.3d 1678

petitioner violated inmate rule 107.10 (7 NYCRR 270.2 [B] [8][i] [interference with employee] ) is not supported by substantial evidence. We therefore modify the determination and grant the petition in part by aning that part of the determination finding that petitioner violated that inmate rule (see Matter of Vasquez v. Goord, 284 A.D.2d 903, 903–904, 725 N.Y.S.2d 921 ), and we direct respondent to expunge from petitioner's institutional record all references to the violation of that inmate rule (see Matter of Edwards v. Fischer, 87 A.D.3d 1328, 1330, 930 N.Y.S.2d 358 ). Inasmuch as the record establishes that petitioner has served his administrative penalty and there is no recommended loss of good time, there is no need to remit the matter to respondent for reconsideration of the penalty (see Matter of Maybanks v. Goord, 306 A.D.2d 839, 840, 761 N.Y.S.2d 566 ).

Contrary to petitioner's further contention, the determination that he violated the remaining inmate rules is supported by substantial evidence, including the misbehavior report and the testimony from the hearing (see generally People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332...