                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 19, 2015                    519200
________________________________

In the Matter of CHRISTOPHER
   PRINCE,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
   et al.,
                    Respondents.
________________________________


Calendar Date:   January 20, 2015

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

                             __________


     Christopher Prince, Dannemora, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondents.

                             __________


      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Clinton County)
to review a determination of respondent Commissioner of
Corrections and Community Supervision which found petitioner
guilty of violating certain prison disciplinary rules.

      Petitioner commenced this CPLR article 78 proceeding
challenging an administrative determination finding him guilty of
violating the prison disciplinary rules that prohibit fighting,
violent conduct, assault on an inmate, possession of a weapon and
creating a disturbance. The charges stemmed from the observation
of a correction officer who witnessed the victim, petitioner and
a third inmate doing laps in the north yard of the correctional
                              -2-                519200

facility. The correction officer saw the victim suddenly jump
away and square off with petitioner and the other inmate. The
victim then immediately went to a correction officer's post to
report that he had been cut, which was confirmed following an
examination revealing a puncture wound consistent with an ice-
pick-type weapon.

      Initially, we agree with petitioner's contention that the
charge of creating a disturbance must be annulled given the lack
of any testimony or other evidence regarding any type of
disturbance resulting from the incident. Remittal for a
redetermination of the penalty is not required, as petitioner has
already served the penalty imposed and the record does not
indicate that any loss of good time was involved (see Matter of
Sanabria v Annucci, 123 AD3d 1328, 1329 [2014]). To the extent
that petitioner challenges the remaining charges, our review of
the record establishes that the misbehavior report, hearing
testimony and unusual incident reports provide substantial
evidence to support the determination of guilt with respect
thereto (see Matter of Thomas v Goord, 34 AD3d 1143, 1144
[2006]), notwithstanding the fact that the victim denied
petitioner's involvement in the attack and no weapon was
ultimately recovered (see Matter of Bolden v Selsky, 305 AD2d
749, 750 [2003], lv denied 100 NY2d 510 [2003]; Matter of Brown v
Goord, 286 AD2d 843, 844 [2001]). Petitioner's remaining
contentions are either unpreserved or without merit.

     Peters, P.J., Rose, Egan Jr. and Clark, JJ., concur.
                              -3-                  519200

      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
creating a disturbance; petition granted to that extent and
respondent Commissioner of Corrections and Community Supervision
is directed to expunge all references to that charge from
petitioner's institutional record; and, as so modified,
confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
