State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 522431 

________________________________

In the Matter of BASHIR TRIGGS,

Petitioner,

v

MICHAEL CAPRA, as MEMORANDUM AND JUDGMENT

Superintendent of Sing Sing 

Correctional Facility, 

et al.,

Respondents.

________________________________

Calendar Date: October 25, 2016

Before: Peters, P.J., McCarthy, Clark, Mulvey and Aarons, JJ.

__________

Bashir Triggs, Dannemora, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Brian D.

Ginsburg 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 respondent Superintendent of Sing Sing

Correctional Facility finding petitioner guilty of violating

certain prison disciplinary rules.

A correction officer searched petitioner's cell believing

that petitioner was in possession of a pair of sneakers that had

been worn by a visitor who came to see him. During the search,

he recovered an altered heating element, two unauthorized cooking

items and a pair of sneakers that purportedly matched the

description of those worn by the visitor. As a result,

petitioner was charged in a misbehavior report with smuggling,
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possessing an altered item, possessing items in an unauthorized

area and violating facility visiting procedures. At the tier II

disciplinary hearing, he pleaded guilty to possessing an altered

item and possessing items in an unauthorized area. At the

conclusion of the hearing, he was found guilty of these charges,

as well as smuggling, but not guilty of violating facility

visiting procedures. The determination was later affirmed on

administrative appeal, and this CPLR article 78 proceeding

followed.

Petitioner's challenge to the sufficiency of the evidence

supporting the determination is limited to that part finding him

guilty of smuggling. The misbehavior report was the only

evidence presented to support this finding. Significantly, the

report fails to set forth any details of the visit during which

the sneakers were allegedly smuggled to petitioner. In addition,

it contains a description of the sneakers that was different than

the one set forth on the contraband receipt.1 Under these

circumstances, we do not find that the misbehavior report

constitutes substantial evidence supporting that part of the

determination finding petitioner guilty of smuggling (see Matter

of Haughey v LaValley, 89 AD3d 1344, 1345 [2011]), particularly

given that he was found not guilty of violating facility visiting

procedures (see Matter of Lashway v Fischer, 117 AD3d 1141, 1142-

1143 [2014]). Nevertheless, given that a loss of good time was

not imposed and petitioner has already served the penalty, the

matter need not be remitted for a redetermination of the penalty

on the remaining violations (see Matter of Soto v Central Off.

Review Comm. of the Dept. of Corr. & Community Supervision, 118

AD3d 1229, 1231 [2014]). In view of our disposition, we need not

address petitioner's remaining claims.

Peters, P.J., McCarthy, Clark, Mulvey and Aarons, JJ.,

concur.

1 Notably, this discrepancy was deemed harmless error on

petitioner's administrative appeal.
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ADJUDGED that the determination is modified, without costs,

by annulling so much thereof as found petitioner guilty of

smuggling; petition granted to that extent, respondent

Superintendent of Sing Sing Correctional Facility is directed to

expunge all references to this charge from petitioner's

institutional record; and, as so modified, confirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court