                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 6, 2014                   518443
________________________________

In the Matter of DONALD
   ROBINSON,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   September 16, 2014

Before:   Stein, J.P., Garry, Rose, Lynch and Devine, JJ.

                             __________


     Donald Robinson, Comstock, 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 Sullivan County)
to review a determination of respondent which found petitioner
guilty of violating certain prison disciplinary rules.

      Upon the discovery of various items during a search of his
prison cell, which included tobacco that had been received in a
package by another inmate, petitioner was charged in a
misbehavior report with smuggling, unauthorized exchange,
possession of an altered item, possession in an unauthorized
area, possession of contraband and providing unauthorized legal
assistance. Subsequently, based upon an interview with another
inmate who alleged that he had performed oral sex on petitioner
in exchange for protection and food, petitioner was charged in a
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second misbehavior report with engaging in a sexual act and
unauthorized exchange. During a tier III disciplinary hearing
addressing both misbehavior reports, petitioner pleaded guilty to
all of the charges in the first report except providing
unauthorized legal assistance. At the conclusion of the hearing,
he was found guilty of the remaining charges and that
determination was affirmed upon administrative appeal.
Petitioner thereafter commenced this CPLR article 78 proceeding.

      With respect to the first misbehavior report, petitioner
is precluded from challenging the finding of guilt with respect
to those charges to which he pleaded guilty (see Matter of
Flemming v Rock, 112 AD3d 1259, 1260 [2013], lv denied 22 NY3d
863 [2014]). Further he has abandoned any challenge to the
finding of guilt with respect to providing unauthorized legal
assistance by his failure to advance such in his brief (see
Matter of Harding v Prack, 118 AD3d 1231, 1232 [2014]).

      Turning to the second misbehavior report, respondent
concedes, and we agree, that the part of the determination
finding petitioner guilty of unauthorized exchange is not
supported by the record and, therefore, the determination must be
annulled to that extent. However, petitioner has served the
penalty and no loss of good time was recommended and, therefore,
the matter need not be remitted (see Matter of Fulmore v Prack,
116 AD3d 1281, 1282 [2014]; Matter of Page v Lee, 116 AD3d 1275,
1275 [2014]). However, with regard to the charge of engaging in
a sexual act, the detailed misbehavior report itself along with
the supporting documentation provide substantial evidence to
support the determination of guilt. Petitioner failed to
preserve his procedural objections, namely, that the misbehavior
report was deficient and that he was denied the right to call a
witness, by his failure to raise these issues at the hearing (see
Matter of Amato v Fischer, 115 AD3d 1100, 1101 [2014]; Matter of
Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).

     Stein, J.P., Garry, Rose, Lynch and Devine, JJ., concur.
                              -3-                  518443

      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
unauthorized exchange; 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
