                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 17, 2015                   521180
________________________________

In the Matter of KESTER SANDY,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

D. VENETTOZZI, as Acting
   Director of Special Housing
   and Inmate Disciplinary
   Programs,
                    Respondent.
________________________________


Calendar Date:   October 27, 2015

Before:   Peters, P.J., McCarthy, Garry and Clark, JJ.

                             __________


     Kester Sandy, Coxsackie, 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 the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      After a correction officer twice ordered petitioner, who
was working in the prison law library, to turn in the typewriter
ribbon and wheel he was using so that another inmate could use
them, petitioner banged his chair against the table, yelled
profanities, slammed the items on the officer's desk breaking
them and shouted a further profanity. As a result, petitioner
was charged in a misbehavior report with creating a disturbance,
violent conduct, refusing a direct order, harassment and damaging
                              -2-                521180

property. Following a tier III disciplinary hearing, he was
found guilty of all charges except violent conduct. The
determination was affirmed on administrative appeal, and this
CPLR article 78 proceeding ensued.

      We confirm. The misbehavior report and testimony of its
author and of other inmates who were present, as well as
petitioner's admission that he did not relinquish the items when
directed to do so, provide substantial evidence to support the
determination (see Matter of Clark v Fischer, 120 AD3d 1468, 1469
[2014], lv denied 24 NY3d 912 [2015]). The inmates' testimony
contradicting some aspects of the correction officer's account
presented a credibility issue for the Hearing Officer to resolve
(see Matter of James v New York State Dept. of Corr. & Community
Supervision, 127 AD3d 1537, 1537-1538 [2015]; Matter of Watson v
Fischer, 108 AD3d 1006, 1007 [2013]). While there are some gaps
in the transcript, we do not find that they materially impacted
the testimony elicited by petitioner or preclude meaningful
review (see Matter of Sanders v Annucci, 128 AD3d 1156, 1157
[2015], appeal dismissed 26 NY3d 964 [2015]). Further, the
record contains no support for petitioner's claim of hearing
officer bias (see Matter of Clark v Fischer, 120 AD3d at 1469),
and his allegation that the Hearing Officer made off-the-record
statements reflecting that he had prejudged the charges is raised
for the first time on review to this Court and, thus, it is not
preserved for our review and may not be considered (see Matter of
Russo v Annucci, 130 AD3d 1124, 1124 [2015]). Finally, the
record reflects that the hearing was timely completed pursuant to
authorized extensions (see Matter of McFadden v Prack, 120 AD3d
853, 855 [2014], lv dismissed 24 NY3d 930, lv denied 24 NY3d 908
[2014]).

     Peters, P.J., McCarthy, Garry and Clark, JJ., concur.
                              -3-                  521180

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
