                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 31, 2014                     517307
________________________________

In the Matter of JORGE L.
   LINARES,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
BRIAN FISCHER, as Commissioner
   of Corrections and Community
   Supervision,
                    Respondent.
________________________________


Calendar Date:   June 9, 2014

Before:   Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.

                             __________


     Jorge L. Linares, Rome, 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.

      Correction officials discovered that petitioner received a
package and had given some of its contents to another inmate.
They found such items in the locker belonging to the other inmate
and learned that the package had been sent to petitioner by the
other inmate's mother. As a result, petitioner was charged in a
misbehavior report with engaging in an unauthorized exchange,
smuggling and violating package room procedures. He was found
guilty of the charges following a tier III disciplinary hearing
and the determination was affirmed on administrative appeal.
                              -2-                517307

This CPLR article 78 proceeding ensued.

      Initially, respondent concedes and we agree that the
determination finding petitioner guilty of violating package room
procedures is not supported by substantial evidence. Although
the determination must be annulled to this extent, the matter
need not be remitted for a reassessment of the penalty given that
no loss of good time was imposed and petitioner has already
served the penalty (see Matter of Madden v Griffin, 109 AD3d
1060, 1061 [2013], lv denied 22 NY3d 860 [2014]; Matter of Hinton
v Fischer, 108 AD3d 1000, 1001 [2013]).

      We find no reason to disturb the determination with respect
to the remaining charges. Petitioner admitted that he received a
package from another inmate's mother and gave a portion of the
contents to the inmate to keep in his locker until petitioner had
room in his own. His testimony was consistent with the testimony
of the other inmate, the inmate's mother and the sergeant who
wrote the misbehavior report, all of which, together with the
detailed misbehavior report, provide substantial evidence
supporting petitioner's guilt of the charges of smuggling and
engaging in an unauthorized exchange (see Matter of Cruz v Walsh,
87 AD3d 1234, 1234-1235 [2011]; Matter of Mendez v Goord, 21 AD3d
1191, 1191-1192 [2005]; Matter of Miller v Portuondo, 269 AD2d
646, 646 [2000]). Contrary to petitioner's claim, we find
nothing to indicate that the Hearing Officer was biased or that
the determination flowed from any alleged bias (see Matter of
Guillory v Fischer, 111 AD3d 1005, 1005-1006 [2013]; Matter of
Fero v Prack, 108 AD3d 1004, 1005 [2013]). Petitioner's
remaining contentions are either unpreserved or without merit.

      Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.,
concur.
                              -3-                  517307

      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
violating package room procedures; 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
