                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 28, 2016                     522462
________________________________

In the Matter of YVEN CHEN,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   June 6, 2016

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

                             __________


     Yven Chen, Napanoch, 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.

      Petitioner was charged in a misbehavior report with
smuggling, possessing a tool without authorization and possessing
an article in an area where its possession is prohibited. The
charges stemmed from his failure to return a seam ripper that had
been assigned to him earlier that day as part of his job in the
facility laundry room. After the seam ripper was discovered to
be missing, petitioner was located in the prison yard with it in
his pocket. Following a tier III disciplinary hearing,
                              -2-                  522462

petitioner was found not guilty of smuggling, but guilty of the
remaining charges. The determination was affirmed on
administrative appeal and this CPLR article 78 proceeding ensued.

      We confirm. The misbehavior report and petitioner's
hearing testimony provide substantial evidence supporting the
determination of guilt (see Matter of Goode v Chappius, 118 AD3d
1225, 1226 [2014]; Matter of Newman v Department of Corr. Servs.,
110 AD3d 1309, 1309-1310 [2013]). Petitioner admitted at the
hearing that he had taken the seam ripper out of the laundry room
and into the yard without authorization. Although he contends
that he forgot that the tool was in his pocket and that he did
not intend to take it out of the laundry room, the rules against
possessing a tool without authorization and possessing it in a
prohibited area apply regardless of an inmate's intent (see 7
NYCRR 270.2 [B] [14] [viii], [xii]; Matter of Bottom v Annucci,
26 NY3d 983, 986 [2015]). Finally, upon reviewing the record, we
find no support for petitioner's contention that the Hearing
Officer was biased or that he was otherwise denied a fair hearing
(see Matter of Jackson v Prack, 137 AD3d 1133, 1135 [2016];
Matter of Quezada v Fischer, 113 AD3d 1004, 1004 [2014]).
Petitioner's remaining claims have been considered and found to
be without merit.

      McCarthy, J.P., Egan Jr., Rose, Devine and Aarons, JJ.,
concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
