                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 29, 2015                   520557
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In the Matter of TERRY SIMMONS,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
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Calendar Date:   September 22, 2015

Before:   Peters, P.J., McCarthy, Lynch and Devine, JJ.

                             __________


     Terry Simmons, Malone, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondent.

                             __________


      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Franklin County)
to review a determination of the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner pleaded guilty to refusing a direct order,
refusing to comply with frisk procedures, smuggling, possessing
drugs and two counts of possessing contraband as charged in two
misbehavior reports. After the penalty was modified by facility
officials, the determination was affirmed upon administrative
appeal and this CPLR article 78 proceeding ensued.

      Initially, the Attorney General concedes, and we agree,
that, because the charges of possession of contraband contained
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in the misbehavior reports arose out of the same incident, the
charge in the second misbehavior report is duplicative and should
have been dismissed (see generally Matter of Cross v Annucci,
131 AD3d 758, 759 [2015]). Because a loss of good time was
imposed as part of the penalty, the matter must be remitted to
the Commissioner of Corrections and Community Supervision for a
redetermination of the penalty on the remaining charges. Turning
to the remaining charges, petitioner is precluded from
challenging the determination as not supported by substantial
evidence inasmuch as he pleaded guilty to those charges (see
Matter of Smith v Annucci, 126 AD3d 1198, 1198 [2015]; Matter of
Sanchez v Annucci, 126 AD3d 1194, 1194 [2015]). Finally,
petitioner's contention that gaps in the hearing transcript
rendered meaningful review insufficient is without merit (see
Matter of Jamison v Fischer, 119 AD3d 1306, 1306-1307 [2014]).

     Peters, P.J., McCarthy, Lynch and Devine, JJ., concur.



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of one
charge of possessing contraband and imposed a penalty; petition
granted to that extent, the Commissioner of Corrections and
Community Supervision is directed to expunge all references to
this charge from petitioner's institutional record, and matter
remitted to the Commissioner for an administrative
redetermination of the penalty on the remaining violations; and,
as so modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
