                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 25, 2014                   518206
________________________________

In the Matter of TIMOTHY BUSH,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

BRIAN FISCHER, as Commissioner
   of Corrections and Community
   Supervision,
                    Respondent.
________________________________


Calendar Date:   August 4, 2014

Before:   Stein, J.P., McCarthy, Rose, Egan Jr. and Lynch, JJ.

                             __________


     Timothy Bush, Gowanda, 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 Albany County) to
review a determination of respondent which found petitioner
guilty of violating certain prison disciplinary rules.

      Petitioner, a prison inmate who was a participant in the
sex offender counseling and treatment program, signed an
agreement to refrain from possessing pornographic materials.
After a search of petitioner's cube revealed drawings depicting
cartoon characters engaging in various sexual acts, he was
charged with refusing to obey a direct order and possession of an
article in an area where possession is prohibited. Following a
tier III disciplinary hearing, he was found guilty of both
charges and that determination was upheld on administrative
appeal. Petitioner thereafter commenced this CPLR article 78
                              -2-                518206

proceeding.

      Initially, we agree with petitioner that substantial
evidence does not support that part of the determination that
found him guilty of refusing to obey a direct order (see Matter
of Newman v Department of Corr. Servs., 110 AD3d 1309, 1310
[2013]; Matter of Sierra v Fischer, 82 AD3d 1436, 1437 [2011]).
As such, that part of the determination is annulled. However,
inasmuch as petitioner has served the penalty imposed and no loss
of good time was recommended, the matter need not be remitted for
a redetermination of the penalty (see Matter of Rivera v Fischer,
110 AD3d 1277, 1278 [2013]; Matter of Pulecio v Fischer, 109 AD3d
1068, 1069 [2013], lv denied 22 NY3d 858 [2014]).

      Turning to the remaining charge, the detailed misbehavior
report and petitioner's admissions that he had agreed not to
possess pornographic materials and that the drawings were in his
possession provide substantial evidence to support the
determination of guilt (see Matter of Newman v Department of
Corr. Servs., 110 AD3d at 1309-1310; Matter of Sierra v Fischer,
82 AD3d at 1437). Our review of the record reveals that the
finding of guilt was based upon the evidence in the record rather
than any alleged hearing officer bias (see Matter of Fero v
Prack, 110 AD3d 1128, 1129 [2013]; Matter of Abrams v Fischer,
109 AD3d 1030, 1031 [2013]). His remaining claims have been
reviewed and determined to be unpreserved or without merit.

      Stein, J.P., McCarthy, Rose, Egan Jr. and Lynch, JJ.,
concur.
                              -3-                  518206

      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
refusing to obey a direct order; 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
