                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 12, 2016                      521510
________________________________

In the Matter of ROHAN BROWN,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
NEW YORK STATE DEPARTMENT OF
   CORRECTIONS AND COMMUNITY
   SUPERVISION et al.,
                    Respondents.
________________________________


Calendar Date:   March 29, 2016

Before:   Lahtinen, J.P., McCarthy, Lynch, Clark and Aarons, JJ.

                             __________


     Rohan Brown, Napanoch, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus
Mastracco of counsel), for respondents.

                             __________


      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Ulster County) to
review a determination of the Superintendent of Eastern
Correctional Facility finding petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner commenced this CPLR article 78 proceeding
challenging a determination finding him guilty of possessing
contraband not authorized by the superintendent, possessing an
authorized item that has been altered and tampering with an
electrical device. Initially, respondents concede, and we agree,
that the misbehavior report did not provide petitioner with
adequate notice with regard to the charges of possessing an
authorized item that has been altered and tampering with an
electrical device. Accordingly, we annul the determination to
                              -2-                  521510

that extent but remittal for a redetermination of the penalty is
unnecessary because the penalty has been completed and no loss of
good time was imposed (see Matter of Branch v Annucci, 133 AD3d
942, 943 [2015]; Matter of Macedonio v Fischer, 116 AD3d 1313,
1313 [2014). Turning to the remaining charge, the misbehavior
report noting the numerous items of contraband discovered in
petitioner's cell and petitioner's testimony provide substantial
evidence to support the finding that petitioner possessed
contraband (see Matter of Macedonio v Fischer, 116 AD3d at 1313).

      Lahtinen, J.P., McCarthy, Lynch, Clark and Aarons, JJ.,
concur.



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
possessing an authorized item that has been altered and tampering
with an electrical device; petition granted to that extent and
the Superintendent of Eastern Correctional Facility is directed
to expunge all references to those charges from petitioner's
institutional record; and, as so modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
