                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 12, 2016                      521707
________________________________

In the Matter of DONALD
   HOLLMANN,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
DEPARTMENT OF CORRECTIONS AND
   COMMUNITY SUPERVISION,
                    Respondent.
________________________________


Calendar Date:   March 29, 2016

Before:   Peters, P.J., Lahtinen, Rose, Clark and Aarons, JJ.

                             __________


     Donald Hollmann, Attica, 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 a determination of the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner was charged in a misbehavior report with
committing an unhygienic act, smuggling and violating facility
correspondence procedures after a correction officer found a
cutoff finger tip of a latex glove containing an unidentified
liquid substance in a letter addressed to petitioner's
girlfriend. Following a tier III disciplinary hearing,
petitioner was found guilty as charged and this determination was
affirmed on administrative appeal. This CPLR article 78
proceeding ensued.
                              -2-                  521707

      Initially, respondent concedes, and we agree, that
substantial evidence does not support that part of the
determination finding petitioner guilty of committing an
unhygienic act. Accordingly, the determination of guilt with
respect to that charge must be annulled. Given that petitioner
has already served the penalty and no loss of good time was
imposed, we need not remit the matter for a redetermination of
the penalty (see Matter of Edwards v Annucci, 131 AD3d 770, 770
[2015]; Matter of Garcia v Garner, 122 AD3d 988, 989 [2014]).

      Turning to the remaining charges, the misbehavior report
and related documentation, together with the testimony of the
correction officer who discovered the letter, provide substantial
evidence to support the determination of guilt (see Matter of
Rosales v Prack, 112 AD3d 1025, 1026 [2013], lv denied 22 NY3d
865 [2014]; Matter of Wright v Goord, 19 AD3d 855, 855 [2005], lv
denied 5 NY3d 711 [2005]). Contrary to petitioner's contention,
the fact that the liquid contained in the latex glove was never
identified does not preclude a finding of guilt regarding the
smuggling charge, inasmuch as smuggling or attempting to smuggle
"any item in or out of the facility" is prohibited (7 NYCRR 270.2
[B] [15] [i]; see Matter of Shakoor v Coughlin, 165 AD2d 917, 918
[1990], appeal dismissed 77 NY2d 866 [1991]).

      Peters, P.J., Lahtinen, Rose, Clark and Aarons, JJ.,
concur.


      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
committing an unhygienic act; 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.



                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
