
    In the Matter of James Phillips, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, et al., Respondents.
    [913 NYS2d 416]
   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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was served with a misbehavior report charging him with harassment and making threats when, dissatisfied with a delay caused by a correction officer performing another task, he stated that “any f. . .ing idiot could do this job, and Rodriguez should be taken out back and shot.” Petitioner was found guilty of both charges following a tier III disciplinary hearing and that determination was upheld on administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding.

Initially, we find that the misbehavior report, along with the testimony of the correction officer who was involved in the incident and authored the report, provide substantial evidence to support the finding of guilt with regard to the charge of harassment (See Matter of Haynes v Bezio, 73 AD3d 1295, 1296 [2010] ; Matter of Key v Fischer, 72 AD3d 1365, 1366 [2010]). However, with respect to the charge of making threats, we come to a different conclusion. On this record, we find that petitioner’s totally inappropriate comment could not have been perceived as an actual threat (compare Matter of Elliott v Fischer, 73 AD3d 1366, 1366 [2010]; Matter of Brown v Fischer, 72 AD3d 1320, 1321 [2010]). As such, we annul that part of the determination and, inasmuch as the penalty imposed included a recommended loss of good time, the matter must be remitted for a redetermination of the penalty relative to the charge of harassment (see Matter of Minton v Fischer, 73 AD3d 1347, 1348 [2010], appeal dismissed 15 NY3d 848 [2010]; Matter of Tevault v Fischer, 61 AD3d 1161, 1163 [2009]).

Petitioner’s remaining contentions have been examined and found to be either unpreserved or without merit.

Peters, J.P, Lahtinen, Malone Jr., Stein and Egan Jr., JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of making threats and imposed a penalty; petition granted to that extent, respondent Commissioner of Correctional Services is directed to expunge all references thereto from petitioner’s institutional record, and matter remitted to respondent for an administrative redetermination of the penalty imposed on the remaining violation; and, as so modified, confirmed.  