                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 15, 2016                   521891
________________________________

In the Matter of JASON SMITH,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

DONALD VENETTOZZI, as Acting
   Director of Special Housing
   and Inmate Disciplinary
   Programs, et al.,
                    Respondents.
________________________________


Calendar Date:   August 8, 2016

Before:   McCarthy, J.P., Garry, Egan Jr., Lynch and Devine, JJ.

                             __________


     Jason Smith, New York City, petitioner pro se.

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

                             __________


      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 Commissioner of Corrections
and Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner occupied a cell in the special housing unit and,
when a correction officer inspected it, he discovered that
various types of graffiti, some of which were gang-related, had
been written on the walls and door. As a result, petitioner was
charged in a misbehavior report with destroying state property,
engaging in gang-related activities and refusing a direct order.
Following a tier III disciplinary hearing, petitioner was found
guilty of the charges, and the determination was affirmed on
                               -2-                521891

administrative appeal.   This CPLR article 78 proceeding ensued.

      Initially, respondents concede, and we agree, that that
part of the determination finding petitioner guilty of refusing a
direct order is not supported by substantial evidence and must be
annulled (see Matter of Tafari v Annucci, 137 AD3d 1356, 1357
[2016]; Matter of Ferril v Annucci, 134 AD3d 1264, 1265 [2015]).
We reach a different conclusion, however, with respect to the
remainder of the determination, which is supported by substantial
evidence consisting of the detailed misbehavior report,
supporting documentation and hearing testimony (see Matter of
Telesford v Annucci, 131 AD3d 753, 753 [2015]; Matter of Gittens
v Fischer, 100 AD3d 1121, 1121 [2012]). Nevertheless, the matter
must be remitted for a redetermination of the penalty given that
a loss of good time was imposed in connection with the original
determination (see Matter of Tafari v Annucci, 137 AD3d at 1357;
Matter of Ferril v Annucci, 134 AD3d at 1265). Contrary to
petitioner's claim, there is no indication that the hearing
transcript was intentionally altered or contains significant
inaudible portions that preclude meaningful review (see Matter of
Allen v Venettozzi, 139 AD3d 1208, 1208-1209 [2016]; Matter of
Smith v Prack, 138 AD3d 1286, 1287 [2016]). Likewise, there is
no indication that the Hearing Officer was biased or that the
determination flowed from any alleged bias (see Matter of Wilson
v Annucci, 138 AD3d 1335, 1335 [2016]; Matter of Giano v Prack,
138 AD3d 1285, 1286 [2016], lv denied ___ NY3d ___ [Aug. 30,
2016]). Petitioner's remaining contentions, to the extent that
they are properly before us, have been considered and are lacking
in merit.

      McCarthy, J.P., Garry, Egan Jr., Lynch and Devine, JJ.,
concur.
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      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
refusing a direct order and imposed a penalty; petition granted
to that extent, respondent Commissioner of Corrections and
Community Supervision is directed to expunge all references to
this charge from petitioner's institutional record and matter
remitted for an administrative redetermination of the penalty on
the remaining violations; and, as so modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
