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

972
TP 12-00592
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


IN THE MATTER OF MARSEAN JOHNSON, PETITIONER,

                    V                              MEMORANDUM AND ORDER

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


MARSEAN JOHNSON, PETITIONER PRO SE.

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, Cayuga County [Mark H.
Fandrich, A.J.], entered March 22, 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 is unanimously
modified on the law and the petition is granted in part by annulling
that part of the determination finding that petitioner violated inmate
rule 121.14 (7 NYCRR 270.2 [B] [22] [v]) and vacating the penalty and
as modified the determination is confirmed without costs, respondent
is directed to expunge from petitioner’s institutional record all
references to the violation 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
hearing, that he violated various inmate rules as charged in a
misbehavior report. We conclude that there is substantial evidence to
support the determination that petitioner violated inmate rules 113.25
(7 NYCRR 270.2 [B] [14] [xv] [drug possession]), 114.10 (7 NYCRR 270.2
[B] [15] [i] [smuggling]), 121.11 (7 NYCRR 270.2 [B] [22] [ii] [third-
party call]) and 180.10 (7 NYCRR 270.2 [B] [26] [i] [facility
visitation violation]). The misbehavior report, together with the
unusual incident report, petitioner’s admissions at the hearing, the
confidential testimony and information considered by the Hearing
Officer, the tape recordings of the telephone conversations at issue
and the hearing testimony of two investigators, constitute substantial
evidence that petitioner violated those inmate rules (see generally
Matter of Colon v Fischer, 83 AD3d 1500, 1501; Matter of Sanders v
Haggett, 72 AD3d 1372, 1372-1373). Contrary to petitioner’s
contention, he was not entitled to access the confidential information
                                 -2-                           972
                                                         TP 12-00592

(see Sanders, 72 AD3d at 1373). Further, given the ongoing criminal
investigation related to the confidential information, the Hearing
Officer properly maintained the confidentiality of that information
(see Matter of Williams v Goord, 23 AD3d 872, 872). There is no merit
to petitioner’s additional contention that the misbehavior report
failed to provide him with sufficient detail to prepare a defense (see
Matter of Robinson v Herbert, 269 AD2d 807, 807).

     As respondent correctly concedes, however, the determination that
petitioner violated inmate rule 121.14 (7 NYCRR 270.2 [B] [22] [v]
[exchanging PINs]) is not supported by the record. We therefore
modify the determination and grant the petition in part by annulling
that part of the determination finding that petitioner violated inmate
rule 121.14, and we direct respondent to expunge from petitioner’s
institutional record all references to the violation of that rule.
Inasmuch as a single penalty was imposed for all five rule violations
charged and the record fails to specify any relation between the
violations and that penalty, we further modify the determination by
vacating the penalty, and we remit the matter to respondent for
imposition of an appropriate penalty on the remaining violations (see
Colon, 83 AD3d at 1502).




Entered:   November 9, 2012                    Frances E. Cafarell
                                               Clerk of the Court
