State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 31, 2014 517307 

________________________________

In the Matter of JORGE L. 

LINARES,

Petitioner,

v

MEMORANDUM AND JUDGMENT

BRIAN FISCHER, as Commissioner

 of Corrections and Community

 Supervision,

Respondent.

________________________________

Calendar Date: June 9, 2014

Before: Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.

__________

Jorge L. Linares, Rome, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H.

Schiff 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.

Correction officials discovered that petitioner received a

package and had given some of its contents to another inmate. 

They found such items in the locker belonging to the other inmate

and learned that the package had been sent to petitioner by the

other inmate's mother. As a result, petitioner was charged in a

misbehavior report with engaging in an unauthorized exchange,

smuggling and violating package room procedures. He was found

guilty of the charges following a tier III disciplinary hearing

and the determination was affirmed on administrative appeal. 
-2- 517307 

This CPLR article 78 proceeding ensued. 

Initially, respondent concedes and we agree that the

determination finding petitioner guilty of violating package room

procedures is not supported by substantial evidence. Although

the determination must be annulled to this extent, the matter

need not be remitted for a reassessment of the penalty given that

no loss of good time was imposed and petitioner has already

served the penalty (see Matter of Madden v Griffin, 109 AD3d

1060, 1061 [2013], lv denied 22 NY3d 860 [2014]; Matter of Hinton

v Fischer, 108 AD3d 1000, 1001 [2013]). 

We find no reason to disturb the determination with respect

to the remaining charges. Petitioner admitted that he received a

package from another inmate's mother and gave a portion of the

contents to the inmate to keep in his locker until petitioner had

room in his own. His testimony was consistent with the testimony

of the other inmate, the inmate's mother and the sergeant who

wrote the misbehavior report, all of which, together with the

detailed misbehavior report, provide substantial evidence

supporting petitioner's guilt of the charges of smuggling and

engaging in an unauthorized exchange (see Matter of Cruz v Walsh,

87 AD3d 1234, 1234-1235 [2011]; Matter of Mendez v Goord, 21 AD3d

1191, 1191-1192 [2005]; Matter of Miller v Portuondo, 269 AD2d

646, 646 [2000]). Contrary to petitioner's claim, we find

nothing to indicate that the Hearing Officer was biased or that

the determination flowed from any alleged bias (see Matter of

Guillory v Fischer, 111 AD3d 1005, 1005-1006 [2013]; Matter of

Fero v Prack, 108 AD3d 1004, 1005 [2013]). Petitioner's

remaining contentions are either unpreserved or without merit.

Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.,

concur.
-3- 517307 

ADJUDGED that the determination is modified, without costs,

by annulling so much thereof as found petitioner guilty of

violating package room 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.

ENTER:

Robert D. Mayberger

Clerk of the Court