                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 3, 2016                     521086
________________________________

In the Matter of DANIEL
   WILLIAMS,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   January 19, 2016

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

                             __________


     Daniel Williams, Dannemora, 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 respondent finding petitioner guilty of
violating a prison disciplinary rule.

      Petitioner was charged in a misbehavior report with
possession of gang-related material after a search of his
property uncovered numerous pictures depicting people displaying
hand signs associated with a gang. Following a tier III
disciplinary hearing, petitioner was found guilty of that charge.
The determination was affirmed upon administrative appeal and
this CPLR article 78 proceeding ensued.
                              -2-                  521086

      The misbehavior report, photographs and testimony at the
hearing provide substantial evidence to support the determination
of guilt (see Matter of Madison v Fischer, 108 AD3d 959, 960
[2013]; Matter of Glover v Fischer, 68 AD3d 1404, 1404 [2009]).
Any challenge to the chain of custody of the confiscated pictures
is irrelevant as petitioner did not deny that the pictures were
his or allege that they had been altered. Furthermore, we have
reviewed petitioner's contention that his employee assistant had
a conflict of interest and find it to be unpersuasive.

      Nevertheless, respondent concedes, and our review of the
record confirms, that the Hearing Officer improperly denied
petitioner's request to call two witnesses, who were correctional
facility staff trained at identifying gang-related materials, to
support his claim that the pictures did not depict any gang-
related signs. As petitioner sought such testimony in order to
refute a correction officer's testimony that the gestures in the
pictures depict gang signs, the Hearing Officer erred in finding
that such testimony would be redundant. Given that the Hearing
Officer put forth a good faith reason for the denial, this
violated petitioner's regulatory right to call witnesses and the
proper remedy is to remit the matter for a new hearing (see
Matter of Lopez v Fischer, 100 AD3d 1069, 1070 [2012]; Matter of
Santiago v Fischer, 76 AD3d 1127, 1127 [2010]). In view of the
foregoing, it is unnecessary to consider petitioner's remaining
contentions.

     Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur.


      ADJUDGED that the determination is annulled, without costs,
and matter remitted to respondent for further proceedings not
inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
