                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 3, 2016                     521130
________________________________

In the Matter of INJAH UNIQUE
   TAFARI,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   January 19, 2016

Before:   Garry, J.P., Rose, Lynch and Clark, JJ.

                             __________


     Injah Unique Tafari, Elmira, 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 Franklin County)
to review a determination of respondent finding petitioner guilty
of violating certain prison disciplinary rules.

      A correction official intercepted a letter that petitioner
attempted to send to a street address that was on his negative
correspondence list. His former mother-in-law resided at that
street address and had lodged a complaint with the correctional
facility that petitioner had been harassing her with threatening
letters. The negative correspondence list stated that it applied
to "anyone at this address." The named addressee was
petitioner's ex-wife who resided at the same street address as
petitioner's former mother-in-law, although in a different
                              -2-                521130

apartment. The substance of the letter contained derogatory and
threatening language. As a result of this incident, petitioner
was charged in a misbehavior report with violating facility
correspondence procedures, making threats, engaging in
harassment, stalking and refusing a direct order. He was found
guilty of the charges following a tier III disciplinary hearing.
The determination was later affirmed on administrative appeal and
this CPLR article 78 proceeding ensued.

      Initially, respondent concedes and we agree that
substantial evidence does not support that part of the
determination finding petitioner guilty of refusing a direct
order (see Matter of Marino v Martuscello, 131 AD3d 749, 749
[2015], lv denied 26 NY3d 910 [2015]; Matter of Pulecio v
Fischer, 109 AD3d 1068, 1069 [2013], lv denied 22 NY3d 858
[2014]). We reach a different conclusion, however, with regard
to the remainder of the determination. The misbehavior report,
documentary evidence and hearing testimony provide substantial
evidence supporting the determination finding petitioner guilty
of violating facility correspondence procedures, making threats,
engaging in harassment and stalking (see Matter of Douglas v
Fischer, 104 AD3d 981 [2013]; Matter of Kairis v Fischer, 54 AD3d
462, 463 [2008]). Inasmuch as a loss of good time was imposed as
part of the penalty and that part of the determination finding
petitioner guilty of refusing a direct order must be annulled,
the matter must be remitted to respondent for a redetermination
of the penalty on the remaining violations (see Matter of Hyatt v
Fischer, 116 AD3d 1263, 1264 [2014]; Matter of Merritt v Fischer,
108 AD3d 993, 994 [2013]).

     Garry, J.P., Rose, Lynch and Clark, JJ., concur.
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      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
refusing a direct order and imposed a penalty; petition granted
to that extent, respondent is directed to expunge all references
to this charge from petitioner's institutional record and matter
remitted to respondent for an administrative redetermination of
the penalty on the remaining violations; and, as so modified,
confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
