        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

889
TP 12-01227
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF HAROLD MILTON, PETITIONER,

                    V                             MEMORANDUM AND ORDER

LINDA JOYCE, DIRECTOR, NEW YORK STATE CENTRAL
REGISTER OF CHILD ABUSE AND MALTREATMENT, AND
NEW YORK STATE OFFICE OF CHILDREN AND FAMILY
SERVICES, RESPONDENTS.


JAMES S. HINMAN, P.C., ROCHESTER (JAMES S. HINMAN OF COUNSEL), FOR
PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF
COUNSEL), FOR RESPONDENTS.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Monroe County [William P.
Polito, J.], entered July 3, 2012) to review a determination of
respondents. The determination denied petitioner’s request that a
report maintained in the New York State Central Register of Child
Abuse and Maltreatment, indicating petitioner for maltreatment, be
amended to unfounded.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner, an employee of respondent New York State
Office of Children and Family Services, commenced this CPLR article 78
proceeding challenging the determination denying his request to amend
to unfounded an indicated report of child abuse and to seal that
amended report. The report was based on petitioner’s physical
altercation with a 16-year-old resident at a secure residential
facility. We reject petitioner’s contention that the determination
denying his request, made after a fair hearing, is not supported by
substantial evidence. “At an administrative expungement hearing, a
report of child [abuse or] maltreatment must be established by a fair
preponderance of the evidence[, and o]ur review . . . is limited to
whether the determination was supported by substantial evidence in the
record on the petitioner[’s] application for expungement” (Matter of
Mangus v Niagara County Dept. of Social Servs., 68 AD3d 1774, 1774-
1775, lv denied 15 NY3d 705 [internal quotation marks omitted]; see
Matter of Saporito v Carrion, 66 AD3d 912, 912). We conclude based on
this record that the determination is supported by substantial
                                 -2-                          889
                                                        TP 12-01227

evidence (see Social Services Law § 422 [8] [c] [ii]; see also former
§ 412-a [1] [a] [i]; former 18 NYCRR 433.2). We reject petitioner’s
further contention that he was denied effective assistance of counsel
at the fair hearing (see generally Matter of Mangus, 68 AD3d at 1774;
Matter of Abramson v New York State Dept. of Motor Vehs., 302 AD2d
885, 886).




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
