State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 10, 2016 521258
________________________________
In the Matter of JERMAIN
BOYKIN,
Petitioner,
v
MEMORANDUM AND JUDGMENT
ALBERT PRACK, as Director of
Special Housing and Inmate
Disciplinary Programs,
Respondent.
________________________________
Calendar Date: January 19, 2016
Before: Peters, P.J., McCarthy, Rose and Devine, JJ.
__________
Jermain Boykin, Elmira, 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 Albany County) to
review a determination of the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with
soliciting, providing false information, possession of
contraband, possession of stolen property and violation of
telephone procedures. The charges stem from an investigation and
search of petitioner's cell that uncovered various tax documents
containing false information suggestive of a scheme to file
fraudulent income tax returns. Also obtained during the
investigation were telephone recordings of petitioner to a woman
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wherein they discussed tax forms and her contacting the Internal
Revenue Service. Petitioner was initially found guilty of all
charges except possession of stolen property but, due to the
Hearing Officer's failure to independently assess the reliability
and credibility of the confidential information, that
determination was administratively reversed and a rehearing
ordered. Following the rehearing, petitioner was again found
guilty of all charges with the exception of possession of stolen
property. That determination was affirmed upon administrative
appeal and this CPLR article 78 proceeding ensued.
We confirm. Petitioner's claim that it was error for the
Commissioner of Corrections and Community Supervision to order a
rehearing, and not expungement, of the charges is without merit.
"[W]here, as here, the procedural errors in the first hearing are
discovered before a final administrative determination is
rendered, a new hearing to correct such errors is proper, even
where the errors are of constitutional dimension" (Matter of
Pabon v Coombe, 249 AD2d 629, 629 [1998] [internal quotation
marks and citation omitted]; see Matter of Hughes v Bedard, 117
AD3d 1246, 1247 [2014]; Matter of Murray v Scully, 170 AD2d 829,
831 [1991], lv denied 78 NY2d 856 [1991]). Petitioner's
remaining challenges to the initial determination of guilt are
moot insofar as that determination was administratively reversed
(see Matter of Hamilton v Selsky, 13 AD3d 844, 845 [2004], lv
denied 5 NY3d 704 [2005]).
To the extent that petitioner argues that the determination
at issue is not supported by substantial evidence, the
misbehavior report, related documentary evidence, telephone
recordings, confidential information and testimony at the hearing
provide substantial evidence to support the determination of
guilt (see Matter of Best v Larkin, 116 AD3d 1306, 1307 [2014]).
Furthermore, petitioner's contention that the Hearing Officer
erred in failing to consider testimony from the first hearing is
without merit. Any inconsistencies as to the reason for the
commencement of the investigation was irrelevant to the charges
(see Matter of Covington v Harford, 105 AD3d 1289, 1290 [2013],
lv denied 21 NY3d 862 [2013]; Matter of Sweeter v Coughlin, 221
AD2d 741, 741 [1995]).
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Peters, P.J., McCarthy, Rose and Devine, JJ., concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court