                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 6, 2015                    519877
________________________________

In the Matter of LEO A. MARINO,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

DANIEL MARTUSCELLO JR., as
   Superintendent of Coxsackie
   Correctional Facility,
                    Respondent.
________________________________


Calendar Date:   June 8, 2015

Before:   Lahtinen, J.P., Egan Jr., Rose and Lynch, JJ.

                             __________


     Leo A. Marino, Dannemora, 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 Greene County) to
review four determinations of respondent which found petitioner
guilty of violating certain prison disciplinary rules.

      Three different correction officers observed petitioner, on
separate occasions, smoking a cigarette in his cell and each
directed him to extinguish it. Each officer then prepared a
misbehavior report charging petitioner with, among other things,
smoking in an undesignated area and refusing a direct order. A
fourth misbehavior report was prepared by a correction counselor
after he received a letter – containing degrading and
intimidating comments – that was written by petitioner in
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response to the counselor's denial of his Freedom of Information
Law request (see Public Officers Law art 6). This misbehavior
report charged petitioner with harassment, interfering with an
employee and making threats.

      Four separate tier II disciplinary hearings were
subsequently conducted. At the conclusion of the first hearing,
petitioner was found guilty of smoking and, after the second and
third hearings, he was found guilty of smoking and refusing a
direct order; all determinations were affirmed upon
administrative appeal. After the fourth hearing, petitioner was
found guilty of harassment, and this determination also was
affirmed upon administrative appeal. Petitioner then commenced
this CPLR article 78 proceeding challenging the four disciplinary
determinations.

      Initially, with respect to those portions of the second and
third determinations finding petitioner guilty of refusing a
direct order, respondent concedes and we agree that substantial
evidence does not support petitioner's guilt and the
determinations must be modified accordingly (see Matter of Page v
Lee, 116 AD3d 1275, 1275 [2014]; Matter of Pulecio v Fischer, 109
AD3d 1068, 1069 [2013], lv denied 22 NY3d 858 [2014]). Inasmuch
as a loss of good time was not imposed and petitioner already has
served the penalty, remittal for redetermination thereof is
unnecessary (see Matter of Page v Lee, 116 AD3d at 1275; Matter
of Pulecio v Fischer, 109 AD3d at 1069). We reach a different
conclusion, however, with respect to the three charges of
smoking. The misbehavior reports, together with petitioner's
testimony at the hearings, provide substantial evidence
supporting petitioner's guilt of smoking on each of the occasions
at issue (see Matter of Goode v Chappius, 118 AD3d 1225, 1226
[2014]; Matter of Newman v Department of Corr. Servs., 110 AD3d
1309, 1309-1310 [2013]).

      As for the fourth disciplinary determination, the
misbehavior report, together with the subject letter, which
petitioner did not dispute writing, provide substantial evidence
supporting petitioner's guilt of the charge of harassment (see
Matter of Greene v Fischer, 107 AD3d 1271, 1271 [2013]; Matter of
Marhone v LaValley, 107 AD3d 1186, 1187 [2013]). Petitioner's
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defense – that the misbehavior reports were brought against him
in retaliation for his filing of grievances – presented a
credibility issue for the Hearing Officer to resolve (see Matter
of Shepherd v Commissioner of Corr. & Community Supervision, 123
AD3d 1283, 1283 [2014]; Matter of Toliver v New York State Commr.
of Corr. & Community Supervision, 114 AD3d 987, 987 [2014]). In
addition, we have reviewed each of the hearing transcripts and do
not find that the Hearing Officers were biased or that the
determinations at issue flowed from any alleged bias (see Matter
of Garcia v Garner, 122 AD3d 988, 989 [2014]; Matter of Brown v
Fischer, 120 AD3d 1517, 1517-1518 [2014]). Petitioner's
remaining contentions have not been preserved for our review.

     Lahtinen, J.P., Egan Jr., Rose and Lynch, JJ., concur.



      ADJUDGED that the determination dated September 10, 2013
finding petitioner guilty of smoking and the determination dated
October 1, 2013 finding petitioner guilty of harassment are
confirmed, without costs, and petition dismissed to that extent.

      ADJUDGED that the determination dated September 10, 2013
finding petitioner guilty of smoking and refusing a direct order
is modified, without costs, by annulling so much thereof as found
petitioner guilty of refusing a direct order; petition granted to
that extent and respondent is directed to expunge all references
to this charge from petitioner's institutional record; and, as so
modified, confirmed.
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      ADJUDGED that the determination dated September 17, 2013
finding petitioner guilty of smoking and refusing a direct order
is modified, without costs, by annulling so much thereof as found
petitioner guilty of refusing a direct order; petition granted to
that extent and respondent is directed to expunge all references
to this charge from petitioner's institutional record; and, as so
modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
