                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 13, 2014                   518694
________________________________

In the Matter of ANTHONY
   ORTEGA,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY ANNUCCI, as Commissioner
   of Corrections and
   Community Supervision,
                    Respondent.
________________________________


Calendar Date:   September 16, 2014

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

                             __________


     Anthony Ortega, New York City, 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 a prison disciplinary rule.

      Petitioner, an inmate, was charged with losing state
property after he reported that certain items were missing from
his locker, including his state-issued razor blade. Following a
tier III disciplinary hearing, petitioner was found guilty and a
penalty was imposed. The determination was affirmed upon
administrative appeal, with a later penalty reduction, and
petitioner commenced this CPLR article 78 proceeding.
                              -2-                518694

      We confirm. The "factually specific" misbehavior report
was authored by the correction officer to whom petitioner
reported the items missing and who searched petitioner's locker
and confirmed that they were missing (Matter of Amaker v Selsky,
43 AD3d 547, 547 [2007], lv denied 9 NY3d 814 [2007]; see Matter
of Hernandez v Goord, 37 AD3d 893, 894 [2007]). We find that the
report was, standing alone, "sufficiently relevant and probative"
to constitute substantial evidence of the charged misconduct
(Matter of Perez v Wilmot, 67 NY2d 615, 616 [1986]; see Matter of
Foster v Coughlin, 76 NY2d 964, 966 [1990]; Matter of Bermudez v
Fischer, 107 AD3d 1269, 1270 [2013]). Petitioner's testimony,
and that of his inmate witness, that his locker had been broken
into created a credibility question for the Hearing Officer to
resolve (see Matter of Foster v Coughlin, 76 NY2d at 966; Matter
of Pulecio v Fischer, 109 AD3d 1068, 1069 [2013], lv denied 22
NY3d 858 [2014]; Matter of Hoskins v Fischer, 49 AD3d 1009, 1009-
1010 [2008]). Contrary to petitioner's claim, the written
statement setting forth the evidence relied upon and the reason
for the penalty adequately complied with the regulatory
requirements and was provided to him at the hearing (see 7 NYCRR
254.7 [a] [5]; Matter of Boynton v Fischer, 105 AD3d 1231, 1231
[2013]). Finally, the Hearing Officer did not shift the burden
of proof or exhibit bias toward petitioner when he noted the
absence of proof that razor blades recovered from petitioner's
housing unit days later belonged to him; even if one of the
recovered blades was petitioner's lost blade, this would not
undermine his responsibility for losing it in the first instance.

      Peters, P.J., Lahtinen, Egan Jr., Lynch and Devine, JJ.,
concur.
                              -3-                  518694

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
