                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 18, 2014                   519027
________________________________

In the Matter of SAMSON
   NYLANDER,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
   et al.,
                    Respondents.
________________________________


Calendar Date:   October 21, 2014

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

                             __________


     Samson Nylander, Auburn, 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 the Commissioner of Corrections and
Community Supervision which found petitioner guilty of violating
certain prison disciplinary rules.

      During a search of petitioner's cell, a correction officer
found two altered hot plates, three books of matches, one frying
pan and an envelope containing a written list of various
ingredients used to make crystal methamphetamine. As a result,
petitioner was charged in a misbehavior report with possessing
drugs or drug paraphernalia and possessing an altered item. At
the tier III disciplinary hearing, he admitted to possessing the
                              -2-                519027

items in question and was found guilty of the charges. The
determination was subsequently affirmed on administrative appeal
and this CPLR article 78 proceeding ensued.

      Initially, the misbehavior report, testimony of its author
and admissions of petitioner provide substantial evidence
supporting that part of the determination finding petitioner
guilty of possessing an altered item (see Matter of Church v
Fischer, 100 AD3d 1128, 1128 [2012]; Matter of Blanche v Selsky,
253 AD2d 944, 945 [1998], lv denied 92 NY2d 817 [1998]). We
reach a different conclusion, however, with respect to that part
of the determination finding him guilty of possessing drugs or
drug paraphernalia (see 7 NYCRR 270.2 [B] [14] [xv]).
Significantly, no drugs were found in petitioner's cell and none
of the items confiscated were implements of drug use (compare
Matter of Marchicote v Bezio, 87 AD3d 763, 763 [2011]; Matter of
Roman v Selsky, 270 AD2d 519, 519 [2000]; Matter of Moonlenaar v
Goord, 266 AD2d 625, 625 [1999], appeal dismissed 94 NY2d 900
[2000]). In view of this, there is no support for the violation
and the determination must be annulled to this extent. However,
given that a loss of good time was imposed, the matter must be
remitted for a redetermination of the penalty on the remaining
charge (see Matter of Cespedes v New York State Department of
Correctional Servs., 68 AD3d 1429, 1430 [2009]; Matter of Tevault
v Fischer, 61 AD3d 1161, 1163 [2009]). Petitioner's complaint
that he was not permitted to observe the search of his cell has
not been preserved for review due to his failure to raise it
either at the hearing or in his administrative appeal (see Matter
of Daughtry v Bezio, 84 AD3d 1623, 1624 [2011], lv denied 17 NY3d
709 [2011]; Matter of DiRose v New York State Dept. of
Corrections, 228 AD2d 868, 869 [1996]).

      Peters, P.J., Lahtinen, Garry, Lynch and Clark, JJ.,
concur.
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      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
possessing drugs or drug paraphernalia and imposed a penalty;
petition granted to that extent, the Commissioner of Corrections
and Community Supervision is directed to expunge all references
to this charge from petitioner's institutional record, and matter
remitted to the Commissioner of Corrections and Community
Supervision for an administrative redetermination of the penalty
on the remaining violation; and, as so modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
