                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 1, 2016                   522431
________________________________

In the Matter of BASHIR TRIGGS,
                    Petitioner,
      v

MICHAEL CAPRA, as                           MEMORANDUM AND JUDGMENT
   Superintendent of Sing Sing
   Correctional Facility,
   et al.,

                    Respondents.
________________________________


Calendar Date:   October 25, 2016

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

                             __________


     Bashir Triggs, Dannemora, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Brian D.
Ginsburg of counsel), for respondents.

                             __________


      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 Superintendent of Sing Sing
Correctional Facility finding petitioner guilty of violating
certain prison disciplinary rules.

      A correction officer searched petitioner's cell believing
that petitioner was in possession of a pair of sneakers that had
been worn by a visitor who came to see him. During the search,
he recovered an altered heating element, two unauthorized cooking
items and a pair of sneakers that purportedly matched the
description of those worn by the visitor. As a result,
petitioner was charged in a misbehavior report with smuggling,
                               -2-                522431

possessing an altered item, possessing items in an unauthorized
area and violating facility visiting procedures. At the tier II
disciplinary hearing, he pleaded guilty to possessing an altered
item and possessing items in an unauthorized area. At the
conclusion of the hearing, he was found guilty of these charges,
as well as smuggling, but not guilty of violating facility
visiting procedures. The determination was later affirmed on
administrative appeal, and this CPLR article 78 proceeding
followed.

      Petitioner's challenge to the sufficiency of the evidence
supporting the determination is limited to that part finding him
guilty of smuggling. The misbehavior report was the only
evidence presented to support this finding. Significantly, the
report fails to set forth any details of the visit during which
the sneakers were allegedly smuggled to petitioner. In addition,
it contains a description of the sneakers that was different than
the one set forth on the contraband receipt.1 Under these
circumstances, we do not find that the misbehavior report
constitutes substantial evidence supporting that part of the
determination finding petitioner guilty of smuggling (see Matter
of Haughey v LaValley, 89 AD3d 1344, 1345 [2011]), particularly
given that he was found not guilty of violating facility visiting
procedures (see Matter of Lashway v Fischer, 117 AD3d 1141, 1142-
1143 [2014]). Nevertheless, given that a loss of good time was
not imposed and petitioner has already served the penalty, the
matter need not be remitted for a redetermination of the penalty
on the remaining violations (see Matter of Soto v Central Off.
Review Comm. of the Dept. of Corr. & Community Supervision, 118
AD3d 1229, 1231 [2014]). In view of our disposition, we need not
address petitioner's remaining claims.

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




     1
        Notably, this discrepancy was deemed harmless error on
petitioner's administrative appeal.
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      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
smuggling; petition granted to that extent, respondent
Superintendent of Sing Sing Correctional Facility 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
