                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 10, 2016                    521402
________________________________

In the Matter of HASSAN
   MOHAMED,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   January 19, 2016

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

                             __________


     Hassan Mohamed, Beacon, 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.

      Following a tier III disciplinary hearing, petitioner was
found guilty of interference with an employee and making a third-
party call. That determination was affirmed on administrative
appeal and this CPLR article 78 proceeding ensued.

      Initially, respondent concedes, and we agree, that the part
of the determination finding petitioner guilty of interference
with an employee is not supported by the record and, therefore,
                              -2-                521402

the determination must be annulled to that extent. However,
petitioner has served the penalty and no loss of good time was
imposed and, therefore, the matter does not need to be remitted
(see Matter of Branch v Annucci, 133 AD3d 942, 943 [2015]; Matter
of Edwards v Annucci, 131 AD3d 770, 770 [2015]). With regard to
the charge of making a third-party call, the misbehavior report,
related documentation, recording of the telephone conversation
and testimony at the hearing provide substantial evidence to
support the determination of guilt (see Matter of Sims v Fischer,
131 AD3d 1314, 1315 [2015]). Contrary to petitioner's
contention, the error in the misbehavior report as to the time of
the third-party call did not deprive him of notice of the charges
against him nor did it render the misbehavior report invalid (see
generally Matter of Sierra v Fischer, 82 AD3d 1436, 1437 [2011];
Matter of Arriaga v Smith, 70 AD3d 1160, 1160 [2010]). Any
alleged inadequacies in the employee assistance was remedied by
the Hearing Officer providing the assistant with the
documentation at the hearing (see Matter of Lashway v Fischer,
117 AD3d 1141, 1142 [2014]). Furthermore, our review of the
record establishes that the determination of guilt flowed from
the evidence presented and not from any alleged bias of the
Hearing Officer (see Matter of Horton v Annucci, 133 AD3d 1002,
1003-1004 [2015]; Matter of Reynolds v LaClair, 89 AD3d 1338,
1339 [2011]). Petitioner's remaining contentions, including that
the misbehavior report was retaliatory in nature, have been
reviewed and found to be without merit.

     Garry, J.P., Egan Jr., Lynch and Clark, JJ., concur.
                              -3-                  521402

      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
interference with an employee; 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
