                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 2, 2017                   523009
________________________________

In the Matter of SHAWN GREEN,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

PAUL CHAPPIUS, as
   Superintendent of Elmira
   Correctional Facility,
                    Respondent.
________________________________


Calendar Date:   November 29, 2016

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

                             __________


     Shawn Green, Dannemora, 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 Chemung County)
to review four determinations denying petitioner's grievances and
two determinations finding petitioner guilty of violating certain
prison disciplinary rules.

      While an inmate at Elmira Correctional Facility in Chemung
County, petitioner filed various grievances concerning the
facility's practices and policies with respect to haircuts,
commissary buy restrictions and vending machines. These
grievances were ultimately denied. In addition, he was charged
in two misbehavior reports with numerous disciplinary rule
violations. Petitioner was found guilty of most of the charges
contained in the first misbehavior report following a tier II
disciplinary hearing, and the determination was later affirmed on
                              -2-                523009

administrative appeal. He was charged in the second misbehavior
report with additional disciplinary rule violations when he
failed to heed a correction officer's order to lock into his
cell, threatened to strike the officer and, in fact, struck the
officer in the jaw with a clinched fist. Following a tier III
disciplinary hearing, petitioner was found guilty of violating a
direct order, making threats, engaging in violent conduct,
interfering with an employee and assaulting staff. This
determination was also affirmed on administrative appeal.
Petitioner subsequently commenced this CPLR article 78 proceeding
challenging the denial of his grievances as well as the prison
disciplinary determinations.

      As petitioner has been transferred to another correctional
facility, he is no longer aggrieved by the practices and policies
forming the bases for his grievances and, thus, those challenges
are now moot (see Matter of Vansteenburg v State of N.Y. Dept. of
Corrs. & Community Supervision, 128 AD3d 1295, 1296 [2015];
Matter of Dawes v Annucci, 125 AD3d 1035, 1036 [2015]). Contrary
to petitioner's claim, the exception to the mootness doctrine is
inapplicable. Turning to the tier II disciplinary determination,
respondent concedes and we agree, after reviewing the hearing
transcript which is woefully incomplete, that it is not supported
by substantial evidence and must be annulled in its entirety,
with all references thereto expunged from petitioner's
institutional record (see Matter of Parker v Fischer, 106 AD3d
1305, 1306 [2013]).

      We reach a different conclusion, however, with respect to
the tier III disciplinary determination. The detailed
misbehavior report, related documentation and hearing testimony
provide substantial evidence supporting the determination (see
Matter of Boyd v Prack, 136 AD3d 1136, 1136 [2016]; Matter of
Genyard v Annucci, 136 AD3d 1091, 1091 [2016]). Petitioner's
denial of any wrongdoing presented a credibility issue for the
Hearing Officer to resolve (see Matter of Byrd v Fischer, 117
AD3d 1263, 1263 [2014]; Matter of Mungo v Director of Special
Hous. & Inmate Disciplinary Programs, 93 AD3d 1057, 1058 [2012],
appeal dismissed 19 NY3d 919 [2012]). We have considered
petitioner's numerous remaining contentions and find them either
unpreserved for our review or lacking in merit.
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     Garry, J.P., Lynch, Rose, Devine and Aarons, JJ., concur.



      ADJUDGED that that portion of the petition challenging the
grievance determinations is dismissed, as moot, without costs.

      ADJUDGED that the determination finding petitioner guilty
of violating certain prison disciplinary rules following a tier
II disciplinary hearing is annulled, without costs, petition
granted to that extent and respondent is directed to expunge all
references thereto from petitioner's institutional record.

      ADJUDGED that the determination finding petitioner guilty
of violating certain prison disciplinary rules following a tier
III disciplinary hearing is confirmed, without costs, and
petition dismissed to that extent.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
