                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 13, 2015                   519984
________________________________

In the Matter of DOMINIC
   EDWARDS,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   June 8, 2015

Before:   McCarthy, J.P., Garry, Lynch and Devine, JJ.

                             __________


     Dominic Edwards, Ogdensburg, 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 St. Lawrence
County) to review a determination of respondent which found
petitioner guilty of violating certain prison disciplinary rules.

      Petitioner was found in possession of a brown leafy
substance, and a correction officer subsequently determined that
it was synthetic marihuana. As a result, petitioner was charged
in a misbehavior report with possessing a narcotic, possessing
contraband and smuggling. Following a tier III disciplinary
hearing, petitioner was found guilty of possessing a narcotic and
possessing contraband, but not guilty of smuggling. The
determination was affirmed on administrative appeal, and this
CPLR article 78 proceeding ensued.
                              -2-                  519984


      Initially, respondent concedes, and we agree, that
substantial evidence does not support petitioner's guilt as to
the charge of possessing a narcotic. Accordingly, we annul that
part of the determination, but need not remit the matter for a
redetermination of the penalty given that petitioner has already
served the penalty and no loss of good time was imposed (see
Matter of Hobson v Prack, 127 AD3d 1370, 1371 [2015]; Matter of
Ramos v Prack, 125 AD3d 1036, 1037 [2015], lv dismissed 25 NY3d
1039 [2015]). We reach a different conclusion with regard to
that part of the determination finding petitioner guilty of
possessing contraband, as petitioner's admission at the hearing
that he had tobacco in his possession provides substantial
evidence to support the determination of guilt as to that charge
(see Matter of Garcia v Garner, 122 AD3d 988, 989 [2014]; Matter
of Dozier v Selsky, 54 AD3d 1074, 1074 [2008]).

      Finally, although the Hearing Officer had general knowledge
of the incident, the record is devoid of evidence that he was
involved in investigating the incident so as to require his
recusal (see Matter of Bellinger v Venettozzi, 119 AD3d 1311,
1312 [2014]; Matter of Brooks v Unger, 110 AD3d 1122, 1122
[2013]).

     McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.


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