State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: September 22, 2016 522710
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In the Matter of DEREK SIMMONS,
Petitioner,
v MEMORANDUM AND JUDGMENT
MICHAEL KIRKPATRICK, as
Superintendent of Clinton
Correctional Facility,
Respondent.
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Calendar Date: August 8, 2016
Before: McCarthy, J.P., Garry, Egan Jr., Lynch and Devine, JJ.
__________
Derek Simmons, Dannemora, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.
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Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Clinton County)
to review a determination of respondent finding petitioner guilty
of violating certain prison disciplinary rules.
Petitioner commenced this CPLR article 78 proceeding to
challenge a tier II determination finding him guilty of violating
certain prison disciplinary rules. The Attorney General has
advised this Court that the determination has since been
administratively reversed, all references thereto have been
expunged from petitioner's institutional record and the mandatory
$5 surcharge has been refunded to petitioner's inmate account.
In view of this, and given that petitioner has been granted all
the relief to which he is entitled, the petition must be
dismissed as moot (see Matter of Ballard v Racette, 140 AD3d
-2- 522710
1428, 1428 [2016]).1
McCarthy, J.P., Garry, Egan Jr., Lynch and Devine, JJ.,
concur.
ADJUDGED that the petition is dismissed, as moot, without
costs.
ENTER:
Robert D. Mayberger
Clerk of the Court
1
In his reply brief, petitioner contends that this Court's
2015 memorandum and order directing expungement of a 2013
determination finding him guilty of creating a disturbance has
not been complied with (Matter of Simmons v LaValley, 130 AD3d
1126, 1127 [2015]). While petitioner appears to be correct,
expungement of a prior determination is not a proper remedy in
this proceeding (see CPLR 7803 [1]).