        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

162
TP 12-01634
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF PAUL COOKHORNE,
PETITIONER-PLAINTIFF,

                    V                             MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION, RESPONDENT-DEFENDANT.


KAREN MURTAGH, EXECUTIVE DIRECTOR, PRISONERS’ LEGAL SERVICES OF NEW
YORK, BUFFALO (MARIA E. PAGANO OF COUNSEL), FOR PETITIONER-PLAINTIFF.


ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF
COUNSEL), FOR RESPONDENT-DEFENDANT.


     Proceeding pursuant to CPLR article 78 and declaratory judgment
action (transferred to the Appellate Division of the Supreme Court in
the Fourth Judicial Department by order of the Supreme Court, Erie
County [Donna M. Siwek, J.], entered August 30, 2012) to review a
determination of respondent-defendant and for an order declaring,
among other things, that the age of sixteen and seventeen year old
prisoners housed in New York State adult correctional facilities must
be considered by respondent-defendant as a mitigating factor in all
disciplinary proceedings. The determination found after a Tier III
hearing that petitioner-plaintiff had violated various inmate rules.

     It is hereby ORDERED that the order insofar as it transferred
that part of the proceeding/action seeking declaratory relief is
unanimously vacated without costs, the declaratory judgment action and
CPLR article 78 proceeding are severed, the declaratory judgment
action is remitted to Supreme Court, Erie County, for further
proceedings, and the determination is modified in the exercise of
discretion and the petition in the CPLR article 78 proceeding is
granted in part by reducing the penalties of confinement in the
Special Housing Unit and loss of good time and other privileges to a
period of 18 months and as modified the determination is confirmed
without costs.

     Memorandum: In this hybrid CPLR article 78 proceeding and
declaratory judgment action, petitioner-plaintiff (petitioner)
challenges the determination following a Tier III prison disciplinary
hearing finding him guilty of violating various inmate rules,
including inmate rules 100.11 (7 NYCRR 270.2 [B] [1] [ii] [assault on
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                                                         TP 12-01634

staff]) and 104.11 (7 NYCRR 270.2 [B] [5] [ii]), and requests certain
declaratory relief. The charges stem from an incident in which
petitioner was alleged to have injured a correction officer. As a
preliminary matter, we note that we do not have jurisdiction to
consider the declaratory judgment action as part of this otherwise
properly transferred CPLR article 78 proceeding. We therefore vacate
the order insofar as it transferred the declaratory judgment action,
sever the declaratory judgment action and CPLR article 78 proceeding,
and remit the declaratory judgment action to Supreme Court for further
proceedings (see Matter of Applegate v Heath, 88 AD3d 699, 700; Matter
of Coleman v Town of Eastchester, 70 AD3d 940, 941; see also Matter of
Cram v Town of Geneva, 182 AD2d 1102, 1102-1103).

     We reject petitioner’s contention that the record lacks
substantial evidence to support the determination that he violated the
various inmate rules as charged in the misbehavior report.
Substantial evidence “means such relevant proof as a reasonable mind
may accept as adequate to support a conclusion or ultimate fact” (300
Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180).
We conclude that the misbehavior report, the testimony of a correction
officer and the photographic evidence constitute substantial evidence
that petitioner violated the charged inmate rules (see Matter of
Bryant v Coughlin, 77 NY2d 642, 647).

     We agree with petitioner, however, that the punishment imposed of
four years’ confinement in the Special Housing Unit (SHU) together
with four years’ loss of good time and various privileges “ ‘is so
disproportionate to the offense, in the light of all the
circumstances, as to be shocking to one’s sense of fairness’ ” (Matter
of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of
Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233; see
generally Matter of Ciotoli v Goord, 256 AD2d 1192, 1193). When
considering the fact that petitioner was only 17 years old at the time
of the incident, all of the circumstances surrounding the incident, as
well as the disciplinary guidelines of respondent-defendant, we
conclude that the maximum penalty that should have been imposed in
this case is 18 months’ confinement in the SHU together with the loss
of 18 months’ good time credit and 18 months’ loss of phone,
commissary and package privileges. We therefore modify the
determination accordingly. Finally, we note that nothing herein
should be construed as limiting the scope of the issues to be
litigated or the relief to which petitioner may be entitled in
deciding the causes of action pleaded in the declaratory judgment
action.




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
