IN RE: Jamal BUTLER (2009)

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 which found petitioner guilty of violating certain prison disciplinary rules.

Following a fight involving 17 inmates in the prison yard, petitioner was charged in a misbehavior report with fighting, engaging in violent conduct and failing to report an injury after he was discovered with lacerations to his left forearm and the right side of his head.   Following a tier III disciplinary hearing, petitioner was found guilty of all charges.   His administrative appeal was unsuccessful and petitioner thereafter commenced this CPLR article 78 proceeding.

 Initially, respondent concedes and we agree that the record does not support the charges against petitioner for fighting and engaging in violent conduct and, thus, the determination must be annulled to that extent with all references thereto expunged from petitioner's institutional record (see Matter of Covington v. Smith, 63 A.D.3d 1453, 884 N.Y.S.2d 781 [2009], lv. denied 13 N.Y.3d 709, 2009 WL 3379914 [2009];  Matter of Daum v. Goord, 27 A.D.3d 858, 858-859, 810 N.Y.S.2d 256 [2006] ).   Inasmuch as no loss of good time was imposed, the matter need not be remitted to respondent to redetermine the penalty (see Matter of Covington v. Smith, 63 A.D.3d at 1453, 884 N.Y.S.2d 781;  Matter of Daum v. Goord, 27 A.D.3d at 859, 810 N.Y.S.2d 256).

 However, with regard to the charge of failing to report an injury, we find that the detailed misbehavior report, hearing testimony, pictures of petitioner's injuries and his admissions during the hearing provide substantial evidence to support this finding of guilt (see Matter of Pertillar v. Fischer, 64 A.D.3d 1029, 1030, 881 N.Y.S.2d 917 [2009];  Matter of Davis v. Fischer, 64 A.D.3d 847, 848, 883 N.Y.S.2d 604 [2009], lv. denied 13 N.Y.3d 709, 2009 WL 3379635 [2009] ).

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