IN RE: James BROWN

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: James BROWN, Petitioner, v. Peter J. LACY, as Superintendent of Bare Hill Correctional Facility, Respondent.

Decided: October 29, 1998

Before CARDONA, P.J., and MIKOLL, SPAIN, CARPINELLO and GRAFFEO, JJ. James Brown, Wilton, petitioner in person. Dennis C. Vacco, Attorney-General (Nancy A. Spiegel of counsel), Albany, for respondent.

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

Petitioner, a prison inmate, was found guilty of three charges each of forgery and possession of stolen property in violation of prison disciplinary rules.   Initially, the Attorney-General concedes, and our review of the record confirms, that there is insufficient evidence to support that part of the determination finding petitioner guilty of forgery, which requires that those charges be annulled and expunged from petitioner's institutional record.   Nevertheless, with respect to the possession of stolen property charges, we find that the misbehavior report and petitioner's testimony that he knew he received too much candy but did not return it provides substantial evidence to support the determination of petitioner's guilt (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 563 N.Y.S.2d 728, 565 N.E.2d 477;  see also, Matter of Morris v. O'Keefe, 240 A.D.2d 994, 659 N.Y.S.2d 521).   Petitioner's remaining contentions, including his assertion of Hearing Officer bias, have been examined and found to be without merit.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of three charges of forgery;  respondents are directed to expunge all references thereto from petitioner's institutional record;  and, as so modified, confirmed.

MEMORANDUM DECISION.

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