IN RE: Leroy JOHNSON (2025)

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with harassment of medical staff and stalking.  The charges stem from petitioner, while in the medical facility on two consecutive days, questioning medical staff about personal information regarding a female nurse.  Following a tier II disciplinary hearing, petitioner was found guilty of both charges.  That determination was affirmed upon administrative appeal.  This CPLR article 78 proceeding ensued.

Initially, respondent concedes, and our review of the record confirms, that substantial evidence does not support the charge of stalking.  Accordingly, we annul that part of the determination, but need not remit the matter for a redetermination of the penalty since it has been completed and no loss of good time was imposed (see Matter of Rose v. Lilley, 205 A.D.3d 1187, 1188, 165 N.Y.S.3d 923 [3d Dept. 2022]).  We reach a different conclusion regarding that part of the determination finding petitioner guilty of harassment.  The misbehavior report, supporting documentation and testimony at the hearing provide substantial evidence supporting the determination of guilt as to that charge (see Matter of Shoga v. Fischer, 118 A.D.3d 1232, 1233, 987 N.Y.S.2d 713 [3d Dept. 2014];  Matter of Wells v. Dubray, 53 A.D.3d 966, 967, 862 N.Y.S.2d 187 [3d Dept. 2008]).  We are satisfied that petitioner's questioning of two staff members on consecutive days, during separate medical call-outs, about information that was unrelated to the medical visits but related to personal information about a female nurse falls within the disciplinary rule prohibiting harassment (see 7 NYCRR 270.2[B][8][ii]) and petitioner's reliance on the Penal Law elements of harassment is not applicable (see Matter of Lott v. Goord, 273 A.D.2d 572, 573, 710 N.Y.S.2d 557 [3d Dept. 2000]).  We have reviewed petitioner's remaining contentions, including that he was improperly denied a material witness and that the determination was in violation of the Humane Alternatives to Long–Term Solitary Confinement Act (Correction Law § 137[6][i][i], [ii], as amended by L 2021, ch 93, § 5), and find them to be without merit.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of stalking;  petition granted to that extent and respondent is directed to expunge all references to that charge from petitioner's institutional record;  and, as so modified, confirmed.

Egan Jr., J.P., Clark, Lynch, Reynolds Fitzgerald and Fisher, JJ., concur.