Briggs v. Venettozzi

190 A.D.3d 1186

136 N.Y.S.3d 797 (Mem)

In the Matter of Wade BRIGGS, Petitioner,

v.Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.

532073

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

Calendar Date: January 4, 2021

Decided and Entered: January 21, 2021

Wade Briggs, Woodbourne, petitioner pro se.

Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.

Before: Garry, P.J., Mulvey, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND JUDGMENT

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.

Petitioner commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of violating certain prison disciplinary rules. The Attorney General has advised this Court that the determination at issue has been administratively reversed and all references thereto have been expunged from petitioner's institutional record. Given that petitioner has received all the relief to which he is entitled, the petition must be dismissed as moot (see Matter of Louime v. Venettozzi, 186 A.D.3d 1870, 1871, 129 N.Y.S.3d 351 [2020] ; Matter of Kennedy v. Annucci, 185 A.D.3d 1372, 1373, 126 N.Y.S.3d 423 [2020] ). Inasmuch as the record does not reflect that the mandatory $5 surcharge was refunded to petitioner's account (see 7 NYCRR 253.7 [b]), he should be permitted to recoup that expense (see Matter of Dibble v. Venettozzi, 181 A.D.3d 1139, 1139, 118 N.Y.S.3d 449 [2020] ). We also note that the loss of good time incurred as part of the penalty imposed should be restored (see Matter of Dacey v. Annucci, 173 A.D.3d 1585, 1585–1586, 101 N.Y.S.3d 672 [2019] ).

Garry, P.J., Mulvey, Aaron...