State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 18, 2014 519027 

________________________________

In the Matter of SAMSON 

NYLANDER,

Petitioner,

v MEMORANDUM AND JUDGMENT

ALBERT PRACK, as Director of

Special Housing and Inmate

Disciplinary Programs, 

et al.,

Respondents.

________________________________

Calendar Date: October 21, 2014

Before: Peters, P.J., Lahtinen, Garry, Lynch and Clark, JJ.

__________

Samson Nylander, Auburn, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J.

Mastracco of counsel), for respondents.

__________

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 the Commissioner of Corrections and

Community Supervision which found petitioner guilty of violating

certain prison disciplinary rules.

During a search of petitioner's cell, a correction officer

found two altered hot plates, three books of matches, one frying

pan and an envelope containing a written list of various

ingredients used to make crystal methamphetamine. As a result,

petitioner was charged in a misbehavior report with possessing

drugs or drug paraphernalia and possessing an altered item. At

the tier III disciplinary hearing, he admitted to possessing the
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items in question and was found guilty of the charges. The

determination was subsequently affirmed on administrative appeal

and this CPLR article 78 proceeding ensued.

Initially, the misbehavior report, testimony of its author

and admissions of petitioner provide substantial evidence

supporting that part of the determination finding petitioner

guilty of possessing an altered item (see Matter of Church v

Fischer, 100 AD3d 1128, 1128 [2012]; Matter of Blanche v Selsky,

253 AD2d 944, 945 [1998], lv denied 92 NY2d 817 [1998]). We

reach a different conclusion, however, with respect to that part

of the determination finding him guilty of possessing drugs or

drug paraphernalia (see 7 NYCRR 270.2 [B] [14] [xv]). 

Significantly, no drugs were found in petitioner's cell and none

of the items confiscated were implements of drug use (compare

Matter of Marchicote v Bezio, 87 AD3d 763, 763 [2011]; Matter of

Roman v Selsky, 270 AD2d 519, 519 [2000]; Matter of Moonlenaar v

Goord, 266 AD2d 625, 625 [1999], appeal dismissed 94 NY2d 900

[2000]). In view of this, there is no support for the violation

and the determination must be annulled to this extent. However,

given that a loss of good time was imposed, the matter must be

remitted for a redetermination of the penalty on the remaining

charge (see Matter of Cespedes v New York State Department of

Correctional Servs., 68 AD3d 1429, 1430 [2009]; Matter of Tevault

v Fischer, 61 AD3d 1161, 1163 [2009]). Petitioner's complaint

that he was not permitted to observe the search of his cell has

not been preserved for review due to his failure to raise it

either at the hearing or in his administrative appeal (see Matter

of Daughtry v Bezio, 84 AD3d 1623, 1624 [2011], lv denied 17 NY3d

709 [2011]; Matter of DiRose v New York State Dept. of

Corrections, 228 AD2d 868, 869 [1996]).

Peters, P.J., Lahtinen, Garry, Lynch and Clark, JJ.,

concur.
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ADJUDGED that the determination is modified, without costs,

by annulling so much thereof as found petitioner guilty of

possessing drugs or drug paraphernalia and imposed a penalty;

petition granted to that extent, the Commissioner of Corrections

and Community Supervision is directed to expunge all references

to this charge from petitioner's institutional record, and matter

remitted to the Commissioner of Corrections and Community

Supervision for an administrative redetermination of the penalty

on the remaining violation; and, as so modified, confirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court