Matter of Anderson v. Annucci

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 23, 2016 522105
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In the Matter of TERRY
ANDERSON,
Petitioner,
v MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
Respondent.
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Calendar Date: May 3, 2016

Before: Peters, P.J., Lahtinen, McCarthy, Lynch and Devine, JJ.

__________

Terry Anderson, Ogdensburg, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Treasure 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 respondent finding petitioner guilty of
violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with
fighting, engaging in violent conduct, lying and failing to
promptly report an injury after a confidential source accused
petitioner of having been involved in a fight with another
inmate. At a tier III disciplinary hearing, petitioner pleaded
guilty to the charge of failing to promptly report an injury and
otherwise pleaded not guilty. At the conclusion of the hearing,
petitioner was found guilty as charged, and this CPLR article 78
proceeding ensued.
 -2- 522105

Initially, because petitioner pleaded guilty to the charge
of failing to promptly report an injury, he is precluded from
challenging the evidence supporting that part of the
determination finding him guilty of this charge (see Matter of
Rodriguez v Fischer, ___ AD3d ___, ___, 28 NYS3d 636, 636 [2016];
Matter of Abrahams v Annucci, 134 AD3d 1368, 1369 [2015]). With
respect to the remaining three charges, the Attorney General
concedes, and we agree, that substantial evidence does not
support petitioner's guilt of these charges, as the Hearing
Officer failed to independently assess the reliability of the
confidential information (see Matter of Bridge v Annucci, 132
AD3d 1197, 1197-1198 [2015]; Matter of Kim v Annucci, 128 AD3d
1196, 1197 [2015]). Accordingly, the finding of guilt with
respect to the charges of fighting, engaging in violent conduct
and lying must be annulled. However, inasmuch as petitioner has
served the penalty and no loss of good time was imposed, the
matter need not be remitted for a redetermination of the penalty
(see Matter of Mohamed v Prack, 137 AD3d 1402, 1402 [2016];
Matter of Kim v Annucci, 128 AD3d at 1198).

Peters, P.J., Lahtinen, McCarthy, Lynch and Devine, JJ.,
concur.

ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
fighting, engaging in violent conduct and lying; petition granted
to that extent and respondent is directed to expunge all
references to these charges from petitioner's institutional
record; and, as so modified, confirmed.

ENTER:

Robert D. Mayberger
Clerk of the Court