SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1070 

TP 12-00637 

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ. 

 

 

IN THE MATTER OF TROY BRITT, PETITIONER, 

V MEMORANDUM AND ORDER

HEARING OFFICER WILLIAM EVANS, RESPONDENT. 

 

TROY BRITT, PETITIONER PRO SE. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF

COUNSEL), FOR RESPONDENT. 

 

Proceeding pursuant to CPLR article 78 (transferred to the

Appellate Division of the Supreme Court in the Fourth Judicial

Department by order of the Supreme Court, Livingston County [Dennis S.

Cohen, A.J.], dated January 23, 2012) to review a determination of

respondent. The determination found after a Tier III hearing that

petitioner had violated various inmate rules. 

It is hereby ORDERED that the determination is unanimously

modified on the law and the petition is granted in part by annulling

that part of the determination finding that petitioner violated inmate

rule 113.11 (7 NYCRR 270.2 [B] [14] [ii]) and vacating the recommended

loss of good time and as modified the determination is confirmed

without costs, respondent is directed to expunge from petitioner’s

institutional record all references to the violation of that rule, and

the matter is remitted to respondent for further proceedings in

accordance with the following Memorandum: Petitioner commenced this

CPLR article 78 proceeding seeking to annul the determination,

following a Tier III hearing, that petitioner had violated various

inmate rules, including inmate rules 108.13 (7 NYCRR 270.2 [B] [9]

[iv] [possession of escape paraphernalia]), 113.10 (7 NYCRR 270.2 [B]

[14] [i] [possession of weapon]), and 113.11 (7 NYCRR 270.2 [B] [14]

[ii] [possession of altered item]). As respondent correctly concedes,

the determination with respect to inmate rule 113.11 (7 NYCRR 270.2

[B] [14] [ii]) is not supported by substantial evidence (see generally

People ex rel. Vega v Smith, 66 NY2d 130, 139). We conclude, however,

that there is substantial evidence to support the determination with

respect to the remaining inmate rules. The misbehavior report,

together with the hearing testimony of the correction officers,

constituted substantial evidence that, inter alia, petitioner was in

possession of escape items and a weapon (see Matter of Foster v

Coughlin, 76 NY2d 964, 966; Smith, 66 NY2d at 139). Petitioner’s

testimony denying his guilt of all violations merely presented issues

of credibility that the Hearing Officer was entitled to resolve
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TP 12-00637 

against him (see Foster, 76 NY2d at 966). 

Petitioner’s remaining contentions were not raised at the Tier

III hearing and therefore are not preserved for our review (see Matter

of Reeves v Goord, 248 AD2d 994, 995, lv denied 92 NY2d 804). 

Moreover, petitioner failed to raise the following contentions in his

administrative appeal: he was denied the right to observe the search

of his cell; the time of the incident listed on the misbehavior report

was too vague; the Hearing Officer had no right to call or crossexamine the correction officers who testified; the Hearing Officer was

biased; the misbehavior report and charges were too poorly drafted for

petitioner to understand the charges; the Hearing Officer erred in

allowing a certain correction officer to remain in the hearing room;

petitioner did not receive adequate employee assistance; the Hearing

Officer suppressed evidence in order to find petitioner guilty;

petitioner never received a written statement of the disposition and

the evidence relied upon; and he was improperly precluded from the

remainder of the Tier III hearing. Petitioner thus failed to exhaust

his administrative remedies with respect to those contentions, “and

this Court has no discretionary authority to reach [them]” (Matter of

Nelson v Coughlin, 188 AD2d 1071, 1071, appeal dismissed 81 NY2d 834). 

We therefore modify the determination and grant the petition in

part by annulling that part of the determination finding that

petitioner violated inmate rule 113.11 (7 NYCRR 270.2 [B] [14] [ii]),

and we direct respondent to expunge from petitioner’s institutional

record all references to the violation of that inmate rule. Although

we need not remit the matter to respondent for reconsideration of

those parts of the penalty already served by petitioner, we note that

there was also a recommended loss of good time, and the record does

not reflect the relationship between the violation and that

recommendation. We therefore further modify the determination by

vacating the recommended loss of good time, and we remit the matter to

respondent for reconsideration of that recommendation (see Matter of

Monroe v Fischer, 87 AD3d 1300, 1301). 

Entered: November 9, 2012 Frances E. Cafarell

Clerk of the Court