        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

67
TP 13-00209
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF DEVAUGHN HOLMES, PETITIONER,

                    V                             MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION, RESPONDENT.


DEVAUGHN HOLMES, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Cayuga County [Thomas G.
Leone, A.J.], entered January 29, 2013) to annul a determination
finding after a tier III hearing that petitioner had violated various
inmate rules.

     It is hereby ORDERED that the determination so appealed from is
unanimously modified on the law and the petition is granted in part by
annulling those parts of the determination finding that petitioner
violated inmate rules 113.25 (7 NYCRR 270.2 [B] [14] [xv]) and 114.10
(7 NYCRR 270.2 [B] [15] [i]) and vacating the recommended loss of good
time and as modified the determination is confirmed without costs,
respondent is directed to expunge from petitioner’s institutional
record all references to the violation of those rules, and the matter
is remitted to respondent for further proceedings in accordance with
the following Memorandum: Petitioner commenced this CPLR article 78
proceeding seeking to annul the determination, following a tier III
disciplinary hearing, that he violated inmate rules 113.25 (7 NYCRR
270.2 [B] [14] [xv] [drug possession]), 114.10 (7 NYCRR 270.2 [B] [15]
[i] [smuggling]), 121.11 (7 NYCRR 270.2 [B] [22] [ii] [third-party
call]), and 121.14 (7 NYCRR 270.2 [B] [22] [v] [exchanging personal
identification numbers (PINs)]). We conclude that there is
substantial evidence to support the determination with respect to
inmate rules 121.11 and 121.14. Specifically, the misbehavior report,
together with the audiotapes of petitioner’s telephone conversations,
establish that petitioner made third-party calls and used the PINs of
other inmates (see Matter of Matthews v Fischer, 95 AD3d 1529, 1530;
see generally Matter of Foster v Coughlin, 76 NY2d 964, 966; People ex
rel. Vega v Smith, 66 NY2d 130, 140). Petitioner’s protestations of
innocence merely raised an issue of credibility for resolution by the
                                 -2-                            67
                                                         TP 13-00209

Hearing Officer (see Foster, 76 NY2d at 966).

     Respondent correctly concedes, however, that the determination
with respect to inmate rules 113.25 and 114.10 is not supported by
substantial evidence (see generally Vega, 66 NY2d at 139), and we
therefore modify the determination accordingly. Inasmuch as the
record establishes that petitioner has served his administrative
penalty, we direct respondent to expunge from petitioner’s
institutional record all references to the violation of those inmate
rules (see Matter of Stewart v Fischer, 109 AD3d 1122, 1123, lv denied
___ NY3d ___ [Dec. 17, 2013]; see generally Matter of Edwards v
Fischer, 87 AD3d 1328, 1330). Although we need not remit the matter
to respondent for reconsideration of those parts of the penalty
already served by petitioner, we note that there was also a
recommended loss of good time, and the record does not reflect the
relationship between the violations and that recommendation (see
Matter of Monroe v Fischer, 87 AD3d 1300, 1301). We therefore further
modify the determination by vacating the recommended loss of good
time, and we remit the matter to respondent for reconsideration of
that recommendation (see id.).

     We have considered petitioner’s remaining contentions and
conclude that they are without merit.




Entered:   February 7, 2014                     Frances E. Cafarell
                                                Clerk of the Court
