                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 15, 2016                   522673
________________________________

In the Matter of RAMIEL HARRIS,
                    Petitioner,
      v

ANTHONY J. ANNUCCI, as Acting               MEMORANDUM AND JUDGMENT
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   October 25, 2016

Before:   Peters, P.J., Garry, Egan Jr., Devine and Aarons, JJ.

                             __________


     Ramiel Harris, Auburn, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Brian
Ginsberg 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 finding petitioner guilty of
violating certain prison disciplinary rules.

      During the course of an investigation, correction officers
discovered that petitioner was involved in a plan to bring drugs
and weapons into the correctional facility. As a result,
petitioner was charged in two misbehavior reports with smuggling,
conspiring to bring drugs and weapons into the facility, making a
prohibited three-way telephone call and violating visitation and
correspondence procedures. Following a tier III disciplinary
hearing, petitioner was found guilty as charged. The
determination was upheld on administrative appeal with a modified
penalty, and this CPLR article 78 proceeding ensued.
                              -2-                522673

      We confirm. The misbehavior reports, hearing testimony,
documentary evidence and confidential information provide
substantial evidence supporting the determination of guilt (see
Matter of Welch v Fischer, 121 AD3d 1139, 1140 [2014]; Matter of
Jones v Prack, 114 AD3d 985, 985 [2014]). Contrary to
petitioner's contention, the Hearing Officer conducted an
independent assessment of reliability of the confidential
information by interviewing the investigating correction officer
and reviewing the confidential information (see Matter of Al-
Matin v Prack, 131 AD3d 1293, 1293 [2015], lv denied 26 NY3d 913
[2015]; Matter of White v Fischer, 121 AD3d 1478, 1479 [2014]).
Further, the fact that petitioner was never found in possession
of weapons or drugs does not negate his guilt, inasmuch as the
rule violations occurred when he conspired to bring the items
into the facility (see 7 NYCRR 270.2 [B] [14] [i], [xv]; 270.3
[b]; Matter of Welch v Fischer, 121 AD3d at 1140; Matter of
Sanders v LaClair, 67 AD3d 1226, 1227 [2009]).

      Turning to petitioner's procedural arguments, we find that
the misbehavior reports adequately apprised petitioner of the
charges against him in order for him to prepare a defense (see
Matter of Chandler v Annucci, 135 AD3d 1258, 1259 [2016]; Matter
of Hobson v Prack, 127 AD3d 1370, 1371 [2015]). We reject
petitioner's contention that he was denied effective employee
assistance, as the Hearing Officer remedied any deficiencies and
petitioner has not demonstrated any prejudice (see Matter of
McMaster v Annucci, 138 AD3d 1289, 1290 [2016], lv denied 28 NY3d
902 [2016]; Matter of Pooler v Fischer, 107 AD3d 1256, 1257
[2013], lv denied 22 NY3d 855 [2013]). Moreover, petitioner's
right to call the former facility superintendent as a witness was
not violated, as the Hearing Officer properly determined that the
witness was unavailable (see Matter of Alicea v Fischer, 89 AD3d
1245, 1246 [2011], lv denied 18 NY3d 807 [2012]; Matter of Lebron
v Goord, 6 AD3d 997, 998 [2004]). Finally, the written
authorization and the confidential testimony of the officer
conducting the investigation establish a proper basis for the
mail watch (see Matter of Davis v Prack, 100 AD3d 1177, 1178
[2012], lv dismissed 22 NY3d 910 [2013]; Matter of Cochran v
Bezio, 70 AD3d 1161, 1162 [2010]). Petitioner's remaining claims
are either unpreserved or lacking in merit.
                              -3-                  522673

      Peters, P.J., Garry, Egan Jr., Devine and Aarons, JJ.,
concur.



      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
