                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 4, 2014                   518843
________________________________

In the Matter of ANTONIO
   OPPENHEIMER,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
T. GRIFFIN, as Superintendent
   of Eastern Correctional
   Facility, et al.,
                    Respondents.
________________________________


Calendar Date:   October 21, 2014

Before:   Peters, P.J., Stein, Garry, Lynch and Clark, JJ.

                             __________


     Antonio Oppenheimer, Napanoch, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs of counsel), for respondent.

                             __________


      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 Superintendent of Eastern
Correctional Facility which found petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner commenced this proceeding to challenge a tier II
prison disciplinary determination finding him guilty of
disobeying a direct order and violating frisk procedures. The
Attorney General has informed this Court that the determination
at issue has been administratively reversed. As such, the matter
is moot and the petition is dismissed (see Matter of Jackson v
Fischer, 57 AD3d 1122, 1122-1123 [2008]; Matter of Gonzalez v
Selsky, 20 AD3d 833 [2006]). Inasmuch as the record does not
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reflect that petitioner was refunded the mandatory $5 surcharge
(see 7 NYCRR 253.7 [b]), he should be permitted to recoup that
expense (see Matter of Mastropietro v Fischer, 81 AD3d 1022, 1022
[2011]).

     Peters, P.J., Stein, Garry, Lynch and Clark, JJ., concur.



      ADJUDGED that the petition is dismissed, as moot, without
costs, but with a refund of the mandatory surcharge in the amount
of $5.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
