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

867
TP 13-00379
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF RANDOLPH STEWART, PETITIONER,

                    V                             MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (ADAM W. KOCH OF
COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (LAURA ETLINGER OF
COUNSEL), FOR RESPONDENT.


     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, Wyoming County [Mark H.
Dadd, A.J.], entered February 27, 2013) to review a determination of
respondent. The determination found after a Tier III hearing that
petitioner had violated various inmate rules.

     It is hereby ORDERED that the determination so appealed from is
unanimously modified on the law and the petition is granted in part by
annulling that part of the determination finding that petitioner
violated inmate rule 121.11 (7 NYCRR 270.2 [B] [22] [ii]) and as
modified the determination is confirmed without costs and respondent
is directed to expunge from petitioner’s institutional record all
references to the violation of that inmate rule.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination, following a tier III disciplinary
hearing, that he violated inmate rules 113.25 (7 NYCRR 270.2 [B] [14]
[xv] [drug possession]), 114.10 (7 NYCRR 270.2 [B] [15] [i]
[smuggling], 121.11 (7 NYCRR 270.2 [B] [22] [ii] [third-party call]),
and 180.10 (7 NYCRR 270.2 [B] [26] [i] [facility visitation
violation]). Respondent correctly concedes in response to
petitioner’s contention that the determination that petitioner
violated inmate rule 121.11 is not supported by substantial evidence.
We therefore modify the determination and grant the petition in part
by annulling that part of the determination finding that petitioner
violated inmate rule 121.11 (see Matter of Vasquez v Goord, 284 AD2d
903, 903-904), and we direct respondent to expunge from petitioner’s
institutional record all references to the violation of that inmate
rule (see generally Matter of Edwards v Fischer, 87 AD3d 1328, 1330).
                                 -2-                           867
                                                         TP 13-00379

Inasmuch as the record establishes that petitioner has served his
administrative penalty, the appropriate remedy is expungement of all
references to the violation of that rule from his institutional record
(see Matter of Delgado v Hurlburt, 279 AD2d 734, 735 n). Further,
because the penalty has been served and there was no recommended loss
of good time, there is no need to remit the matter to respondent for
reconsideration of the penalty (see Matter of Maybanks v Goord, 306
AD2d 839, 840).

     Contrary to petitioner’s further contention, the determination
that he violated the remaining inmate rules is supported by
substantial evidence, including transcripts of petitioner’s telephone
conversations, confidential testimony, and confidential documentary
evidence (see generally People ex rel. Vega v Smith, 66 NY2d 130,
139). Petitioner failed to exhaust his administrative remedies with
respect to his contention that he was denied the opportunity to call a
witness, inasmuch as he failed to raise that contention in his
administrative appeal, “ ‘and this Court has no discretionary
authority to reach that contention’ ” (Matter of McFadden v Prack, 93
AD3d 1268, 1269).




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