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

627
TP 12-00223
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


IN THE MATTER OF JOSHUA LINER, PETITIONER,

                    V                              MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH RENE NOWOTARSKI
OF COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF 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, Wyoming County [Mark H.
Dadd, A.J.], entered January 27, 2012) to review a determination of
respondent. The determination found after a Tier III 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 those parts of the determination finding that petitioner
violated inmate rule 180.17 (7 NYCRR 270.2 [B] [26] [vii]) and
vacating the recommended loss of good time and as modified the
determination is confirmed without costs, respondent is directed to
expunge from petitioner’s institutional record all references to the
violations of that inmate rule, and the matter is remitted to
respondent for further proceedings in accordance with the following
Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination, following a Tier III disciplinary
hearing, that he violated inmate rules 113.20 (7 NYCRR 270.2 [B] [14]
[x] [possessing excess or altered clothing]), 113.22 (7 NYCRR 270.2
[B] [14] [xii] [possessing property in unauthorized area]), 113.27 (7
NYCRR 270.2 [B] [14] [xvii] [soliciting, possessing or exchanging
other inmate crime information]) and 180.17 (7 NYCRR 270.2 [B] [26]
[vii] [providing unauthorized legal assistance]). We conclude that
there is substantial evidence to support the determination with
respect to inmate rule 113.20 inasmuch as petitioner pleaded guilty to
the violation of that rule (see Matter of Holdip v Travis, 9 AD3d 825,
826). We further conclude that there is substantial evidence to
support the determination with respect to inmate rules 113.22 and
113.27 (see Matter of Foster v Coughlin, 76 NY2d 964, 966; People ex
rel. Vega v Smith, 66 NY2d 130, 140). “Contrary to petitioner’s
                                 -2-                           627
                                                         TP 12-00223

contention, the record does not establish ‘that the Hearing Officer
was biased or that the determination flowed from the alleged bias’ ”
(Matter of Colon v Fischer, 83 AD3d 1500, 1502; see Matter of
Rodriguez v Herbert, 270 AD2d 889, 890). “The mere fact that the
Hearing Officer ruled against the petitioner is insufficient to
establish bias” (Matter of Edwards v Fischer, 87 AD3d 1328, 1329
[internal quotation marks omitted]).

     As respondent correctly concedes, however, the determination with
respect to inmate rule 180.17 is not supported by substantial evidence
(see generally Vega, 66 NY2d at 139). We therefore modify the
determination and grant the petition in part by annulling those parts
of the determination finding that petitioner violated inmate rule
180.17, and we direct respondent to expunge from petitioner’s
institutional record all references to the violations of that rule.
“Although there is no need to remit the matter to respondent for
reconsideration of those parts of the penalty already served by
petitioner, we note that there was also a recommended loss of good
time, and the record does not reflect the relationship between the
violations and that recommendation” (Matter of Monroe v Fischer, 87
AD3d 1300, 1301). We therefore further modify the determination by
vacating the recommended loss of good time, and we remit the matter to
respondent for reconsideration of that recommendation.




Entered:   June 8, 2012                         Frances E. Cafarell
                                                Clerk of the Court
