                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 23, 2016                     521930
________________________________

In the Matter of MICHAEL MAYS,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ROBERT CUNNINGHAM, as
   Superintendent of Woodbourne
   Correctional Facility,
                    Respondent.
________________________________


Calendar Date:   May 3, 2016

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

                               __________


     Michael Mays, Woodbourne, 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.

      Petitioner, a prison inmate, was charged in a misbehavior
report with engaging in an unauthorized exchange, possessing
unauthorized medication, possessing contraband, possessing stolen
property, possessing altered items and possessing gang-related
material. Following a tier III disciplinary hearing, petitioner
was found not guilty of engaging in an unauthorized exchange and
possessing stolen property, but guilty of the remaining charges.
The determination was affirmed on administrative appeal and
petitioner thereafter commenced this CPLR article 78 proceeding.
                              -2-                  521930

      Initially, respondent concedes and we agree that
substantial evidence does not support the charge of possessing
gang-related material. Accordingly, we annul that part of the
determination. Given that petitioner has already served the
penalty and a loss of good time was not imposed, the matter need
not be remitted for a reassessment of the penalty (see Matter of
Young v Keyser, 136 AD3d 1084, 1084-1085 [2016]). Inasmuch as
petitioner has limited his brief to challenging only the charge
of possessing gang-related material, he has abandoned any
challenge to the findings of guilt with respect to the remaining
charges (see Matter of Carter v Fischer, 117 AD3d 1262, 1262
[2014]; Matter of Staine v Fischer, 111 AD3d 999, 999 [2013]).
We reject petitioner's contention that the Hearing Officer did
not conduct a fair and impartial hearing and there is nothing in
the record to indicate that the Hearing Officer was biased or
that the determination flowed from any alleged bias (see Matter
of Collins v Fischer, 109 AD3d 1040, 1040 [2013], lv dismissed 23
NY3d 954 [2014]; Matter of Kalwasinski v Bezio, 80 AD3d 1068,
1069 [2011]). Petitioner's remaining claims have been examined
and found to be without merit.

      Peters, P.J., Egan Jr., Rose, Mulvey and Aarons, JJ.,
concur.



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
possessing gang-related material; 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
