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IN RE: Elmer RIVERA, Petitioner, v. Judgment Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Decided: October 24, 2013

Before: ROSE, J.P., STEIN, McCARTHY and GARRY, JJ. Elmer Rivera, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco 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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, commenced this proceeding challenging a prison disciplinary determination rendered upon two misbehavior reports.1 The first report charged him with drug possession, smuggling and violating facility visitation procedures and the second report charged him with drug possession, smuggling, misuse of state property and committing an unhygienic act. Following a tier III disciplinary hearing, petitioner was found guilty as charged. On administrative appeal, the determination was modified by dismissing one charge of drug possession as duplicative, but otherwise affirmed.

Initially, respondent concedes that the Hearing Officer improperly denied petitioner's request for witnesses who could have provided testimony relevant to the charge of violating facility visitation procedures. Upon review of the record, we agree and annul the determination to that extent. Inasmuch as a loss of good time was not recommended and petitioner has served the penalty imposed, remittal for a redetermination of the penalty is unnecessary (see Matter of Nieves v. Venettozzi, 102 A.D.3d 1027, 1027 [2013], lv denied 21 N.Y.3d 852 [2013] ).

Turning to petitioner's claims regarding the remaining charges, to the extent he asserts that he was denied adequate employee assistance, such assertion is unavailing inasmuch as he has failed to demonstrate that his defense was prejudiced by the alleged deficiencies (see Matter of Smith v. Selsky, 294 A.D.2d 629, 630 [2002] ). Finally, we find nothing in the record to indicate that the Hearing Officer was biased or that the determination flowed from any bias (see Matter of Tinker v. Bezio, 106 A.D.3d 1356, 1357 [2013]; Matter of Fisher v. Fischer, 105 A.D.3d 1286, 1286 [2013] ).

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


1.  Although Supreme Court properly transferred the proceeding inasmuch as petitioner raised the issue of substantial evidence in his petition, that issue has been abandoned because petitioner failed to raise it in his brief (see Matter of Lineberger v. Bezio, 89 A.D.3d 1293, 1294 [2011], appeal dismissed 19 N.Y.3d 847 [2012] ).

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