                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 8, 2015                   518844
________________________________

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


Calendar Date:   September 15, 2015

Before:   Peters, P.J., Lahtinen, McCarthy and Lynch, JJ.

                             __________


     Alex Shoga, Pine City, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondent.

                             __________


Lahtinen, J.

      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.

      Petitioner, an inmate, was charged with various
disciplinary rule violations in two separate misbehavior reports.
A tier III disciplinary hearing was conducted with respect to the
charges contained in both reports, but the determination rendered
as a result thereof was subsequently reversed and a rehearing was
ordered. An extension was granted to begin the rehearing due to
the unavailability of the Hearing Officer. At the conclusion of
the rehearing, petitioner was found guilty of engaging in violent
                              -2-                518844

conduct and assaulting staff. After this determination was
affirmed on administrative appeal, petitioner commenced this CPLR
article 78 proceeding.

      We confirm. Initially, we reject petitioner's contention
that the rehearing was not conducted in a timely manner in
accordance with the provisions of 7 NYCRR 251-5.1. Although the
order directing the rehearing provided that it was to begin by
March 7, 2013, a valid extension was obtained to commence the
hearing by March 11, 2013, and it was started on that date. In
view of this, the rehearing was commenced in a timely fashion
(see Matter of Castillo v Fischer, 120 AD3d 1493 [2014]; Matter
of Lafranco v Fischer, 105 AD3d 1235, 1236 [2013], lv dismissed
22 NY3d 929 [2013]).

      Likewise, we find no merit to petitioner's claim that he
was denied adequate employee assistance. Except for items that
were confidential or nonexistent, petitioner was provided with
all of the documents requested in the 23-item list that he gave
to his assistant (see Matter of West v Costello, 270 AD2d 673,
674 [2000]). Although petitioner claims that his assistant
failed to conduct an investigation of witnesses who would testify
in his defense, the only inmate witness requested was a porter
who was not specifically identified, and it was later disclosed
that all porters questioned refused to testify. Significantly,
many of the other witnesses on the list, other than those who
refused or whose testimony was either confidential or irrelevant,
did testify at the hearing. In view of the foregoing, we find
that petitioner was provided meaningful assistance and has not
demonstrated that he was prejudiced by his assistant's alleged
inadequacies (see Matter of Antinuche v Goord, 16 AD3d 743, 744
[2005]; Matter of Greene v Coombe, 242 AD2d 796, 797 [1997], lv
denied 91 NY2d 803 [1997]). We have considered petitioner's
remaining contentions and find them to be unpersuasive.
Therefore, we find no reason to disturb the determination of
guilt.

     Peters, P.J., McCarthy and Lynch, JJ., concur.
                              -3-                  518844

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
