State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 23, 2016 521930 

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In the Matter of MICHAEL MAYS,

Petitioner,

v MEMORANDUM AND JUDGMENT

ROBERT CUNNINGHAM, as 

Superintendent of Woodbourne 

Correctional Facility,

Respondent.

________________________________

Calendar Date: May 3, 2016

Before: Peters, P.J., Egan Jr., Rose, Mulvey and Aarons, JJ.

__________

Michael Mays, Woodbourne, 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 the Commissioner of Corrections and

Community Supervision finding petitioner guilty of violating

certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior

report with engaging in an unauthorized exchange, possessing

unauthorized medication, possessing contraband, possessing stolen

property, possessing altered items and possessing gang-related

material. Following a tier III disciplinary hearing, petitioner

was found not guilty of engaging in an unauthorized exchange and

possessing stolen property, but guilty of the remaining charges. 

The determination was affirmed on administrative appeal and

petitioner thereafter commenced this CPLR article 78 proceeding.
-2- 521930 

Initially, respondent concedes and we agree that

substantial evidence does not support the charge of possessing

gang-related material. Accordingly, we annul that part of the

determination. Given that petitioner has already served the

penalty and a loss of good time was not imposed, the matter need

not be remitted for a reassessment of the penalty (see Matter of

Young v Keyser, 136 AD3d 1084, 1084-1085 [2016]). Inasmuch as

petitioner has limited his brief to challenging only the charge

of possessing gang-related material, he has abandoned any

challenge to the findings of guilt with respect to the remaining

charges (see Matter of Carter v Fischer, 117 AD3d 1262, 1262

[2014]; Matter of Staine v Fischer, 111 AD3d 999, 999 [2013]). 

We reject petitioner's contention that the Hearing Officer did

not conduct a fair and impartial hearing and there is nothing in

the record to indicate that the Hearing Officer was biased or

that the determination flowed from any alleged bias (see Matter

of Collins v Fischer, 109 AD3d 1040, 1040 [2013], lv dismissed 23

NY3d 954 [2014]; Matter of Kalwasinski v Bezio, 80 AD3d 1068,

1069 [2011]). Petitioner's remaining claims have been examined

and found to be without merit.

Peters, P.J., Egan Jr., Rose, Mulvey and Aarons, JJ.,

concur.

ADJUDGED that the determination is modified, without costs,

by annulling so much thereof as found petitioner guilty of

possessing gang-related material; petition granted to that extent

and the Commissioner of Corrections and Community Supervision 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