                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 17, 2014                     518044
________________________________

In the Matter of ROHAN BROWN,
                    Petitioner,
      v

NEW YORK STATE DEPARTMENT OF                MEMORANDUM AND JUDGMENT
   CORRECTIONS AND COMMUNITY
   SUPERVISION et al.,
                    Respondents.
________________________________


Calendar Date:   June 9, 2014

Before:   Lahtinen, J.P., Stein, Garry, Rose and Egan Jr., JJ.

                             __________


     Rohan Brown, Napanoch, 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 Ulster County) to
review a determination of the Superintendent      of Eastern
Correctional Facility which found petitioner      guilty of violating
certain prison disciplinary rules.

      After 12 empanadas were discovered hidden in petitioner's
bag during a search at the yard gate, petitioner was charged in a
misbehavior report with smuggling and theft of state property.
At the ensuing tier II disciplinary hearing, petitioner pleaded
guilty to the smuggling charge and was found guilty of the theft
of state property charge. The determination was affirmed on
administrative appeal and this CPLR article 78 proceeding ensued.
                              -2-                  518044

      Initially, respondents concede, and we agree upon reviewing
the record, that the part of the determination finding petitioner
guilty of theft of state property is not supported by substantial
evidence. As such, that part of the determination must be
annulled. Given that petitioner has already served the penalty
and a loss of good time was not imposed, the matter need not be
remitted for a reassessment of the penalty (see Matter of Smith v
Fischer, 87 AD3d 1198, 1199 [2011]). However, the $18 surcharge
ordered in connection with that part of the determination must be
refunded. Regarding the charge of smuggling, petitioner's guilty
plea precludes him from challenging the determination of guilt
with respect to that charge (see Matter of Flores v Fischer, 110
AD3d 1302, 1302 [2013], lv denied 22 NY3d 861 [2014]).

      Lahtinen, J.P., Stein, Garry, Rose and Egan Jr., JJ.,
concur.



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of theft
of state property; the Superintendent of Eastern Correctional
Facility is directed to expunge all references to this charge
from petitioner's institutional record and to reimburse the $18
surcharge to petitioner; and, as so modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
