The opinion
State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 12, 2016 521585
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In the Matter of CARLTON BROWN,
Petitioner,
v
DONALD VENETTOZZI, as Acting MEMORANDUM AND JUDGMENT
Director of Special Housing
and Inmate Disciplinary
Programs, et al.,
Respondents.
________________________________
Calendar Date: March 29, 2016
Before: Lahtinen, J.P., Lynch, Devine, Mulvey and Aarons, JJ.
__________
Carlton Brown, Attica, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondents.
__________
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 Commissioner of Corrections
and Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.
Correction officials conducted an investigation into two
checks that appeared to be issued from the checking account of
the Sullivan Correctional Facility and that had been altered and
made payable to the relatives of petitioner and another inmate.
The investigation uncovered further indications that petitioner
was involved in the scheme and that the facility mail system was
used to perpetrate it. Petitioner was accordingly charged in a
misbehavior report with smuggling, forgery, misusing state
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property, possessing unauthorized property and violating facility
correspondence procedures. He was found guilty of the charges
following a tier III disciplinary hearing and the determination
was later affirmed on administrative appeal. Petitioner then
commenced this CPLR article 78 proceeding challenging the
determination.
Respondents initially concede that substantial evidence in
the record does not support the charge that petitioner possessed
unauthorized property. We therefore annul that part of the
determination but, inasmuch as the penalty has been served and no
loss of good time was imposed, we need not remit the matter for a
redetermination of that penalty (see Matter of Gomez v
Cunningham, 137 AD3d 1432, 1433 [2016]).
The detailed misbehavior report, hearing testimony and
considerable confidential information reviewed by the Hearing
Officer in camera provide substantial evidence supporting the
determination of guilt with regard to the remaining charges (see
Matter of Best v Larkin, 116 AD3d 1306, 1307 [2014]; Matter of
Bethune v Fischer, 108 AD3d 966, 967 [2013], lv denied 22 NY3d
855 [2013]). Contrary to petitioner's claim, the Hearing Officer
undertook an independent assessment of the confidential
information to ascertain that it was reliable, extensively
questioning the correction lieutenant who conducted the
investigation and a confidential source (see Matter of Chandler v
Annucci, 135 AD3d 1258, 1259 [2016]; Matter of Hayward v Fischer,
101 AD3d 1308, 1309 [2012]; cf. Matter of Bridge v Annucci, 132
AD3d 1197, 1198 [2015]). Petitioner's remaining contentions are
either unpreserved for our review or are lacking in merit.
Lahtinen, J.P., Lynch, Devine, Mulvey and Aarons, JJ.,
concur.
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ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
possessing unauthorized property; petition granted to that extent
and respondent Commissioner of Corrections and Community
Supervision is directed to expunge all references to this charge
from petitioner's institutional record; and, as so modified,
confirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court