                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 28, 2016                   520953
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In the Matter of CHRISTOPHER
   CHISHOLM,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
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Calendar Date:   December 8, 2015

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

                             __________


     Christopher Chisholm, Auburn, 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 respondent finding petitioner guilty of
violating certain prison disciplinary rules.

      Petitioner commenced this CPLR article 78 proceeding
challenging a determination finding him guilty of nine charges
stemming from three separate misbehavior reports. Respondent
concedes, and we agree, that substantial evidence does not
support the determination of guilt with respect to the third
misbehavior report, which charged petitioner with smuggling and
possessing a controlled substance. Accordingly, we annul that
part of the determination, but need not remit the matter for a
redetermination of the penalty given that petitioner has already
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served the penalty and no loss of good time was imposed (see
Matter of Branch v Annucci, 133 AD3d 942, 943 [2015]; Matter of
Edwards v Annucci, 131 AD3d 770, 770 [2015]). Turning to the
first and second misbehavior reports, we find that petitioner has
abandoned any challenge to the findings of guilt with respect to
the charges contained therein inasmuch as his brief is limited to
challenging the third misbehavior report (see Matter of Robinson
v Annucci, 122 AD3d 981, 982 [2014]; Matter of Carter v Fischer,
117 AD3d 1262, 1262 [2014]). Finally, petitioner's claim that he
was denied a fair and impartial hearing is not substantiated by
the record (see Matter of Canzater-Smith v Selsky, 28 AD3d 899,
900 [2006]).

     Peters, P.J., Garry, Lynch and Clark, JJ., concur.



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
smuggling and possessing a controlled substance as charged in the
third misbehavior report; petition granted to that extent and
respondent is directed to expunge all references to these charges
from petitioner's institutional record; and, as so modified,
confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
