                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 1, 2016                   522682
________________________________

In the Matter of LUIS CINTRON,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

MICHAEL KIRKPATRICK, as
   Superintendent of Clinton
   Correctional Facility,
                    Respondent.
________________________________


Calendar Date:   October 25, 2016

Before:   McCarthy, J.P., Egan Jr., Rose, Devine and Aarons, JJ.

                             __________


     Luis Cintron, Ossining, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.

                             __________


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

      Petitioner was charged in a misbehavior report with
possession of contraband and possession of stolen property after
a search of his cell uncovered 19 state garbage bags in the
bottom of petitioner's locker and five library books. Petitioner
was found guilty of both charges following a tier II disciplinary
hearing and that determination was affirmed upon administrative
appeal. This CPLR article 78 proceeding ensued.

      To the extent that petitioner asserts that he did not plead
guilty to possession of contraband, the hearing transcript and
                              -2-                522682

signed hearing record sheet belie that contention. Given that
petitioner admitted to possessing the garbage bags and entered a
guilty plea to the charge of possession of contraband, "he is
precluded from challenging the determination of guilt with
respect to that charge" (Matter of Smith v Fischer, 85 AD3d 1481,
1482 [2011]; see Matter of Hemphill v Selsky, 26 AD3d 548, 549-
550 [2006]).

      With regard to the charge of stealing state property, we do
not find that there is substantial evidence to support the
determination of guilt. Although petitioner admitted to
possessing a large number of garbage bags, neither the
misbehavior report nor any evidence at the hearing establish that
petitioner stole the bags. Similarly, the fact that books were
found in petitioner's cell without any additional information
does not establish that petitioner stole the books. Petitioner's
explanation as to why he possessed the books was not refuted by
any evidence, including the sparse, conclusory information set
forth in the misbehavior report. Under these circumstances,
there is no evidence to establish that the items discovered in
petitioner's cell were in fact stolen (see Matter of Santiago v
Cunningham, 121 AD3d 1495, 1495-1496 [2014]; Matter of Nimmons v
Fischer, 85 AD3d 1460, 1461 [2011]; Matter of Hemphill v Selsky,
26 AD3d at 550). Because petitioner has already served the
penalty and no loss of good time was imposed, the matter need not
be remitted for a redetermination of the penalty (see Matter of
Vega v Prack, 141 AD3d 1059, 1060 [2016]).

      McCarthy, J.P., Egan Jr., Rose, Devine and Aarons, JJ.,
concur.
                              -3-                  522682

      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
stealing state property; petition granted to that extent and
respondent 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
