        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1041
TP 16-00140
PRESENT: CARNI, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF LEROY JOHNSON, PETITIONER,

                    V                                MEMORANDUM AND ORDER

JOHN B. LEMPKE, SUPERINTENDENT, WENDE CORRECTIONAL
FACILITY, RESPONDENT.


LEROY JOHNSON, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [Christopher J.
Burns, J.], entered January 20, 2016) to review a determination of
respondent. The determination found after a tier II hearing that
petitioner had violated various inmate rules.

     It is hereby ORDERED that the determination so appealed from is
unanimously modified on the law and the petition is granted in part by
annulling that part of the determination finding that petitioner
violated inmate rule 107.10 (7 NYCRR 270.2 [B] [8] [i]), and as
modified the determination is confirmed without costs, and respondent
is directed to expunge from petitioner’s institutional record all
references to the violation of that inmate rule.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination, following a tier II disciplinary
hearing, that he violated various inmate rules. Respondent correctly
concedes that the determination that petitioner violated inmate rule
107.10 (7 NYCRR 270.2 [B] [8] [i] [interference with employee]) is not
supported by substantial evidence. We therefore modify the
determination and grant the petition in part by annulling that part of
the determination finding that petitioner violated that inmate rule
(see Matter of Vasquez v Goord, 284 AD2d 903, 903-904), and we direct
respondent to expunge from petitioner’s institutional record all
references to the violation of that inmate rule (see Matter of Edwards
v Fischer, 87 AD3d 1328, 1330). Inasmuch as the record establishes
that petitioner has served his administrative penalty and there is no
recommended loss of good time, there is no need to remit the matter to
respondent for reconsideration of the penalty (see Matter of Maybanks
v Goord, 306 AD2d 839, 840).
                                 -2-                          1041
                                                         TP 16-00140

     Contrary to petitioner’s further contention, the determination
that he violated the remaining inmate rules is supported by
substantial evidence, including the misbehavior report and the
testimony from the hearing (see generally People ex rel. Vega v Smith,
66 NY2d 130, 139). Petitioner failed to exhaust his administrative
remedies with respect to his contentions that the determination was
arbitrary and capricious and the Hearing Officer was biased inasmuch
as he failed to raise those contentions in his administrative appeal,
“ ‘and this Court has no discretionary authority to reach th[ose]
contention[s]’ ” (Matter of McFadden v Prack, 93 AD3d 1268, 1269).




Entered:   November 18, 2016                   Frances E. Cafarell
                                               Clerk of the Court
