State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: September 25, 2014 518206 

________________________________

In the Matter of TIMOTHY BUSH,

Petitioner,

v MEMORANDUM AND JUDGMENT

BRIAN FISCHER, as Commissioner

of Corrections and Community 

Supervision,

Respondent.

________________________________

Calendar Date: August 4, 2014

Before: Stein, J.P., McCarthy, Rose, Egan Jr. and Lynch, JJ.

__________

Timothy Bush, Gowanda, 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.

Petitioner, a prison inmate who was a participant in the

sex offender counseling and treatment program, signed an

agreement to refrain from possessing pornographic materials. 

After a search of petitioner's cube revealed drawings depicting

cartoon characters engaging in various sexual acts, he was

charged with refusing to obey a direct order and possession of an

article in an area where possession is prohibited. Following a

tier III disciplinary hearing, he was found guilty of both

charges and that determination was upheld on administrative

appeal. Petitioner thereafter commenced this CPLR article 78
-2- 518206 

proceeding.

Initially, we agree with petitioner that substantial

evidence does not support that part of the determination that

found him guilty of refusing to obey a direct order (see Matter

of Newman v Department of Corr. Servs., 110 AD3d 1309, 1310

[2013]; Matter of Sierra v Fischer, 82 AD3d 1436, 1437 [2011]). 

As such, that part of the determination is annulled. However,

inasmuch as petitioner has served the penalty imposed and no loss

of good time was recommended, the matter need not be remitted for

a redetermination of the penalty (see Matter of Rivera v Fischer,

110 AD3d 1277, 1278 [2013]; Matter of Pulecio v Fischer, 109 AD3d

1068, 1069 [2013], lv denied 22 NY3d 858 [2014]).

Turning to the remaining charge, the detailed misbehavior

report and petitioner's admissions that he had agreed not to

possess pornographic materials and that the drawings were in his

possession provide substantial evidence to support the

determination of guilt (see Matter of Newman v Department of

Corr. Servs., 110 AD3d at 1309-1310; Matter of Sierra v Fischer,

82 AD3d at 1437). Our review of the record reveals that the

finding of guilt was based upon the evidence in the record rather

than any alleged hearing officer bias (see Matter of Fero v

Prack, 110 AD3d 1128, 1129 [2013]; Matter of Abrams v Fischer,

109 AD3d 1030, 1031 [2013]). His remaining claims have been

reviewed and determined to be unpreserved or without merit.

Stein, J.P., McCarthy, Rose, Egan Jr. and Lynch, JJ.,

concur.
-3- 518206 

ADJUDGED that the determination is modified, without costs,

by annulling so much thereof as found petitioner guilty of

refusing to obey a direct order; 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