                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 2, 2017                   523263
________________________________

In the Matter of RUBEN PENA,
                    Petitioner,
      v

ANTHONY J. ANNUCCI, as Acting               MEMORANDUM AND JUDGMENT
   Commissioner of Corrections
   and Community Supervision,
   et al.,
                    Respondents.
________________________________


Calendar Date:   November 29, 2016

Before:   Lynch, J.P., Rose, Devine, Mulvey and Aarons, JJ.

                             __________


     Ruben Pena, Cape Vincent, 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 Superintendent of Cape
Vincent Correctional Facility finding petitioner guilty of
violating certain prison disciplinary rules.

      Following an investigation into gambling activity that
included a search of petitioner's cell, petitioner was charged in
a misbehavior report with gambling, possessing an altered item,
possessing contraband and lying. Following a tier II
disciplinary hearing, petitioner was found guilty of possessing
an altered item and gambling but not guilty of the remaining
charges. That determination was affirmed upon administrative
appeal, and this CPLR article 78 proceeding ensued.
                              -2-                  523263

      Initially, respondents concede, and we agree, that the
charge of gambling is not supported by substantial evidence.
Accordingly, we annul that part of the determination. Given that
no loss of good time was imposed and petitioner has already
served the penalty, the matter need not be remitted for a
reassessment of the penalty (see Matter of McBride v Annucci, 142
AD3d 1218, 1218 [2016]). Turning to the remaining charge of
possessing an altered item, the misbehavior report, supporting
documentation and petitioner's admission that he altered the pen
with a metal tip in order to use it as a screwdriver to fix his
glasses provide substantial evidence to support the determination
of guilt (see Matter of Garcia v Garner, 122 AD3d 988, 989
[2014]; Matter of Tinnirello v Selsky, 51 AD3d 1238, 1239
[2008]). Contrary to petitioner's contention, we find no error
in the use of the date that the investigation concluded as the
incident date on the misbehavior report rather than the date that
petitioner's cell was searched (see Matter of Moore v Venettozzi,
138 AD3d 1288, 1289 [2016]). We have reviewed petitioner's
remaining contentions and find them to be without merit.

     Lynch, J.P., Rose, Devine, Mulvey and Aarons, JJ., concur.



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
gambling; petition granted to that extent and respondent
Superintendent of Cape Vincent Correctional Facility 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
