                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 26, 2017                   523573
________________________________

In the Matter of DEWITT
   McGRIFF,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
DONALD VENETTOZZI, as Director
   of Special Housing and
   Inmate Disciplinary
   Programs,
                    Respondent.
________________________________


Calendar Date:   November 29, 2016

Before:   Peters, P.J., McCarthy, Devine, Clark and Mulvey, JJ.

                             __________


     Dewitt McGriff, Fallsburg, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Patrick A.
Woods 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 the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      During the course of an investigation, an investigator
monitoring petitioner's telephone calls became suspicious that
petitioner was involved in a plan with others, including another
inmate, to smuggle drugs into the correctional facility.
According to the investigator, petitioner arranged in coded
telephone conversations to have drugs delivered to another
inmate's wife who would, in turn, bring them into the
                              -2-                523573

correctional facility. When the inmate's wife came to the
correctional facility to visit her husband, she voluntarily
surrendered a quantity of heroin to correction officials.
Thereafter, petitioner was charged in a misbehavior report with
smuggling, conspiring to introduce drugs into the facility,
making third-party calls and violating visiting room procedures.
At the conclusion of a tier III disciplinary hearing, he was
found guilty of smuggling, conspiring to introduce drugs into the
facility and making third-party calls, but not guilty of
violating visiting room procedures. The determination was later
affirmed on administrative appeal, and this CPLR article 78
proceeding ensued.

      Petitioner contends, among other things, that the
determination is not supported by substantial evidence. With
respect to that part of the determination finding him guilty of
smuggling and conspiring to introduce drugs into the correctional
facility, we agree. The tape-recorded conversation that was read
into the record during the hearing is replete with inaudible
portions rendering it impossible to ascertain if, in fact,
petitioner was a participant in the smuggling plan (see Matter of
Haigler v Fischer, 119 AD3d 1261, 1262 [2014], lv denied 24 NY3d
908 [2014]; see also Matter of Gibson v Fischer, 54 AD3d 1086,
1086 [2008]). Moreover, the investigator who authored the
misbehavior report did not identify the coded language allegedly
used during the telephone conversation that led him to believe
that petitioner was involved in such a plan (see Matter of Muller
v Fischer, 125 AD3d 1034, 1035 [2015]; see also Matter of Brooks
v Commissioner of Special Hous. Unit, 96 AD3d 1317, 1317 [2012]).
The confidential information considered by the Hearing Officer in
camera – which only calls the accuracy of the conversation read
into the record at the hearing into further doubt – does not
remedy these deficiencies. Thus, the determination must be
partially annulled. The record does support that part of the
determination finding petitioner guilty of making third-party
calls (see Matter of Haigler v Fischer, 119 AD3d at 1262).
Although we are annulling part of the determination, the matter
need not be remitted for a reassessment of the penalty on the
remaining charge given that no loss of good time was imposed and
petitioner has already served the penalty (see Matter of Kim v
Annucci, 128 AD3d 1196, 1198 [2015]). Petitioner's remaining
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arguments, to the extent they need be considered in view of our
disposition, are without merit.

      Peters, P.J., McCarthy, Devine, Clark and Mulvey, JJ.,
concur.



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
smuggling and conspiring to introduce drugs into the correctional
facility; petition granted to that extent and the Commissioner of
Corrections and Community Supervision is directed to expunge all
references to these charges from petitioner's institutional
record; and, as so modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
