Johnson v. Annucci

183 N.Y.S.3d 775 (Mem)

In the Matter of Ronald JOHNSON, Petitioner,

v.Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

535208

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

Calendar Date: February 10, 2023

Decided and Entered: March 16, 2023

Ronald Johnson, Yonkers, petitioner pro se.

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

Before: Clark, J.P., Aarons, Ceresia, Fisher and McShan, 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 respondent finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with violating numerous prison disciplinary rules including, as relevant here, providing misleading information, violating facility correspondence procedures and disobeying a direct order. At the conclusion of the tier III disciplinary hearing that followed, the Hearing Officer found petitioner guilty of violating the foregoing charges, and a penalty was imposed. Upon administrative appeal, that decision was affirmed with a modified penalty, prompting petitioner to commence this CPLR article 78 proceeding seeking to annul respondent's determination.

Respondent concedes, and our review of the record confirms, that the challenged determination – insofar as it found petitioner guilty of providing misleading information and violating facility correspondence procedures – is not supported by substantial evidence and must be annulled. Inasmuch as the administrative penalty has been served and no loss of good time was imposed, remittal for a redetermination of the penalty is unnecessary (see Matter of Rizzuto v. Melville, 210 A.D.3d 1152, 1153, 177 N.Y.S.3d 778 [3d Dept. 2022] ). As to the remaining charge of disobeying a direct order, the detailed misbehavior report, together with the testimony of its author and petitioner's acknowledgment that he authored the letters at issue, constitute substantial evidence to support the finding that petitioner disobeyed a direct order prohibiting him from using certain computers for personal use (see Matter of Brooks v. Unger, 110 A.D.3d 1122, 1122, 972 N.Y.S.2d 740 [3d Dept. 2013] ; Matter of Tarbell v. Prack, 89 A.D.3d 1342, 1342–1343, 934 N.Y.S.2d 522 [3d Dept. 2011] ; Matter of Belot v. Selsky, 56 A.D.3d 911, 912, 868 N.Y.S.2d 324 [3d...