                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 5, 2015                   520078
________________________________

In the Matter of WALTER BRANCH,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
   et al.,
                    Respondents.
________________________________


Calendar Date:   September 22, 2015

Before:   Peters, P.J., McCarthy, Rose and Clark, JJ.

                             __________


     Walter Branch, Romulus, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff 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 commenced this CPLR article 78 proceeding
challenging a determination finding him guilty of violent conduct
and making threats. Initially, respondents concede, and we
agree, that substantial evidence does not support the charge of
violent conduct. Accordingly, we annul that part of the
determination, but need not remit the matter for a
redetermination of the penalty because the penalty has been
completed and no loss of good time was imposed (see Matter of
                              -2-                  520078

Hobson v Prack, 127 AD3d 1370, 1371 [2015]). Turning to the
remaining charge, the misbehavior report, letter written by
petitioner and testimony at the hearing provide substantial
evidence to support the determination of guilt (see Matter of
Alston v Goord, 25 AD3d 852, 852 [2006]). Contrary to
petitioner's contention, statements in the letter could be viewed
as threatening conduct which exceeds that sanctioned under
Correction Law § 138 (4) and which violated the disciplinary rule
that prohibits making threats (see e.g. Matter of Cabassa v
Kuhlman, 173 AD2d 973, 974 [1991], lv denied 78 NY2d 858 [1991]).
Furthermore, we find no merit in petitioner's assertion that his
1st Amendment constitutional rights were violated (see Matter of
Marhone v LaValley, 107 AD3d 1186, 1187 [2013]; Matter of Koehl v
Fischer, 52 AD3d 1070, 1071 [2008], appeal dismissed and lv
denied 11 NY3d 809 [2008]). Petitioner's remaining contentions
are either unpreserved for our review or without merit.

     Peters, P.J., McCarthy, Rose and Clark, JJ., concur.



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
violent conduct; petition granted to that extent and respondent
Commissioner of Corrections and Community Supervision 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
