                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 12, 2016                      521694
________________________________

In the Matter of MICHAEL
   CLARKE,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
DONALD VENETTOZZI, as Acting
   Director of Special Housing
   and Inmate Disciplinary
   Programs,
                    Respondent.
________________________________


Calendar Date:   March 29, 2016

Before:   Peters, P.J., McCarthy, Lynch, Clark and Mulvey, JJ.

                             __________


     Michael Clarke, Cape Vincent, 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 Albany County) to
review two determinations of the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      After correspondence mailed by petitioner, an inmate, was
returned as undeliverable, it was opened to reveal a letter
allegedly containing gang symbols and references. A subsequent
search of petitioner's cell revealed a SONY walkman with no
inmate DIN number marked on it and another letter allegedly
containing gang references. As a result, petitioner was charged
in a misbehavior report with engaging in gang activity,
                              -2-                521694

possession of contraband and engaging in an unauthorized
exchange. Petitioner was thereafter charged in a second
misbehavior report with using a controlled substance after a
sample of his urine twice tested positive for the presence of
cannabinoids.

      At the tier III disciplinary hearing held to address the
first misbehavior report, petitioner pleaded not guilty to the
gang activity charge and guilty to the remaining charges.
Following the hearing, petitioner was found guilty of all the
charges and this determination was affirmed on administrative
appeal. Following the tier III disciplinary hearing on the
second misbehavior report, petitioner was found guilty as charged
and this determination was also affirmed on administrative
appeal. Petitioner thereafter commenced this CPLR article 78
proceeding challenging both disciplinary determinations.

      With regard to the first determination (dated November 4,
2014), petitioner's guilty plea to possessing contraband and
engaging in an unauthorized exchange precludes any challenge to
the sufficiency of the evidence supporting the determination of
guilt of those charges (see Matter of Simmons v Prack, 132 AD3d
1217, 1217 [2015]; Matter of Kim v Annucci, 128 AD3d 1196, 1197
[2015]). As to the determination of guilt of engaging in gang
activity, the Attorney General has informed us that the letters
in question written by petitioner cannot be located and,
therefore, are not part of the record before us. Without the
letters, we are unable to undertake a meaningful review of
petitioner's challenge to the sufficiency of the evidence
supporting this charge (see generally Matter of Medina v New York
State Dept. of Corr. Servs., 104 AD3d 976, 977 [2013], lv denied
21 NY3d 859 [2013]; Matter of Douglas v Goord, 24 AD3d 922, 923
[2005]). Accordingly, that part of the determination finding
petitioner guilty of engaging in gang activity must be annulled.
Given that conclusion, it is unnecessary to address petitioner's
remaining challenges to the first determination of guilt, as they
refer to the engaging in gang activity charge. Insofar as
petitioner has served the penalty associated with this
determination, and no loss of good time was imposed for engaging
in gang activity, the matter does not need to be remitted (see
Matter of Branch v Annucci, 133 AD3d 942, 943 [2015]).
                              -3-                521694

      Regarding the second determination (dated December 8,
2014), petitioner contends that correctional staff did not
provide a valid reason for ordering him to provide a urine
sample. Urinalysis testing of inmates shall be conducted when,
as relevant here, "correctional staff has reason to believe the
inmate has used drugs or alcohol" (7 NYCRR 1020.4 [a] [1]; see
Matter of Laliveres v Prack, 136 AD3d 1082, 1082 [2016]). The
only evidence in the record as to the reason that the urinalysis
test was ordered came from a correction officer who testified
that it was standard facility protocol to order a urinalysis test
on inmates written up for engaging in gang activity. Even
assuming, without deciding, that evidence of gang activity such
as alleged here could have provided correctional staff with a
reason to believe that petitioner had used drugs, inasmuch as we
are unable to review the letters that were the basis for the
charge that led to the test being conducted, we are precluded
from a meaningful review of this issue. Accordingly, the
determination finding petitioner guilty of using a controlled
substance must be annulled. This decision renders review of
petitioner's remaining claims with respect to this determination
unnecessary.

      Peters, P.J., McCarthy, Lynch, Clark and Mulvey, JJ.,
concur.



      ADJUDGED that the determination dated November 4, 2014 is
modified, without costs, by annulling so much thereof as found
petitioner guilty of engaging in gang activity; petition granted
to that extent and the Commissioner of Corrections and Community
Supervision is directed to expunge all references to this charge
from petitioner's institutional record; and, as so modified,
confirmed.
                              -4-                  521694

      ADJUDGED that the determination dated December 8, 2014 is
annulled, without costs, petition granted to that extent and the
Commissioner of Corrections and Community Supervision is directed
to expunge all references to this matter from petitioner's
institutional record and restore any loss of good time.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
