Stewart v. Fischer

• Decision Date: 27 September 2013
• Citation: 2013 N.Y. Slip Op. 06130,971 N.Y.S.2d 618,109 A.D.3d 1122
• Parties: In the Matter of Randolph STEWART, Petitioner, v. Brian FISCHER, Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

109 A.D.3d 1122
971 N.Y.S.2d 618
2013 N.Y. Slip Op. 06130

In the Matter of Randolph STEWART, Petitioner,
v.
Brian FISCHER, Commissioner, New York State Department of Corrections and Community Supervision, Respondent.

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

Sept. 27, 2013.

[971 N.Y.S.2d 619]

Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner.

Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of Counsel), for Respondent.

PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.

MEMORANDUM:

[109 A.D.3d 1123][1] Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated inmate rules 113.25 (7 NYCRR 270.2 [B][14][xv] [drug possession] ), 114.10 (7 NYCRR 270.2[B][15][i] [smuggling], 121.11 (7 NYCRR 270.2[B][22] [ii] [third-party call] ), and 180.10 (7 NYCRR 270.2[B][26][i] [facility visitation violation] ). Respondent correctly concedes in response to petitioner's contention that the determination that petitioner violated inmate rule 121.11 is not supported by substantial evidence. We therefore modify the determination and grant the petition in part by annulling that part of the determination finding that petitioner violated inmate rule 121.11 ( 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 generally 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, the appropriate remedy is expungement of all references to the violation of that rule from his institutional record ( see Matter of Delgado v. Hurlburt, 279 A.D.2d 734, 735, 718 N.Y.S.2d 473 n.). Further, because the penalty has been served and there was 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 transcripts of petitioner's telephone conversations, confidential testimony, and confidential documentary evidence ( see generally People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139,...