                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 25, 2014                   517921
________________________________

In the Matter of THOMAS FIELDS,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   August 4, 2014

Before:   Stein, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


     Thomas Fields, Stormville, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondent.

                             __________


      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 finding petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner became unresponsive in his cell and, when
officials responded, was found to be holding packages containing
an unknown substance. The substance tested positive for heroin.
Petitioner was accordingly charged in a misbehavior report with
possessing a controlled substance, being under the influence of
an intoxicant and smuggling. At the tier III disciplinary
hearing, petitioner pleaded guilty to possessing a controlled
substance, but argued that the testing procedures employed were
inadequate to identify the substance as heroin, and pleaded not
                              -2-                517921

guilty to the remaining charges. Petitioner was found guilty of
all charges and the determination was affirmed in relevant part
upon administrative appeal. This CPLR article 78 proceeding
ensued.

      Respondent concedes that substantial evidence in the record
does not support the determination of guilt as to the charges of
being under the influence of an intoxicant and smuggling. We
accordingly annul that part of the determination, although
remittal is not required given that petitioner has already served
the penalty imposed and no loss of good time was involved (see
Matter of Brown v New York State Dept. of Corrections & Community
Supervision, 119 AD3d 1205, 1206 [2014]; Matter of Flournoy v
Bezio, 84 AD3d 1636, 1637 [2011]). In light of the foregoing, we
need not address petitioner's challenge to the adequacy of the
misbehavior report with regard to those charges.

      Petitioner is precluded from challenging the sufficiency of
the evidence supporting the determination with regard to the drug
possession charge because he pleaded guilty to that charge (see
Matter of Tingling v Fischer, 108 AD3d 989, 990 [2013]; Matter of
Ayrhart v Fischer, 94 AD3d 1310, 1311 [2012]). In any case, the
misbehavior report, positive NIK test result for heroin and
hearing testimony support the determation of guilt, and we
decline petitioner's invitation to revisit the well-settled
proposition that a second test to confirm the positive test
result was not required (see Matter of Staine v Fischer, 111 AD3d
999, 1000 [2013]; Matter of Fero v Prack, 108 AD3d 1004, 1005
[2013]).

      Stein, J.P., Egan Jr., Lynch, Devine and Clark, JJ.,
concur.
                              -3-                  517921

      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of being
under the influence of an intoxicant and smuggling; petition
granted to that extent and the Commissioner of Corrections and
Community Supervision 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
