                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 14, 2016                    520490
________________________________

In the Matter of JOHNATHAN
   RAMIREZ,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   February 23, 2016

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

                             __________


     Johnathan Ramirez, Attica, 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 Franklin County)
to review a determination of respondent finding petitioner guilty
of violating certain prison disciplinary rules.

      Following an assault on an inmate in a prison cell by
multiple inmates, petitioner was charged in a misbehavior report
with assaulting an inmate, violent conduct, creating a
disturbance and possessing a weapon. Following a tier III
disciplinary hearing, petitioner was found guilty of all charges,
and a penalty was imposed. The finding of guilt was affirmed on
administrative appeal, with a modified penalty. Petitioner
thereafter commenced this CPLR article 78 proceeding.
                              -2-                520490

      We confirm. Contrary to petitioner's contention, a review
of the record, including the Hearing Officer's consideration of
the misbehavior report together with the testimony and
documentation provided by prison officials who witnessed the
aftermath of the incident and investigated it, provide
substantial evidence to support the determination of guilt (see
Matter of James v New York State Dept. of Corr. & Community
Supervision, 127 AD3d 1537, 1537 [2015]; Matter of Fernandez v
Fischer, 110 AD3d 1422, 1422-1423 [2013]; Matter of Watson v
Fischer, 108 AD3d 1006, 1007 [2013]; cf. Matter of Lopez v New
York State Dept. of Corr. & Community Supervision, 125 AD3d 1032,
1033 [2015]). Petitioner's contrary assertion that he did not
attack the victim, in addition to the testimony from the victim
and other inmates indicating that they did not see who had done
the stabbing, created credibility questions for the Hearing
Officer to resolve (see Matter of James v New York State Dept. of
Corr. & Community Supervision, 127 AD3d at 1537-1538; Matter of
Spencer v Annucci, 122 AD3d 1043, 1044 [2014]; Matter of Watson v
Fischer, 108 AD3d 1006, 1007 [2013]).

      To the extent that petitioner preserved for our review his
contention that the hearing was prematurely commenced (see 7
NYCRR 253.6 [a]), the record reflects that, although the hearing
was initially commenced approximately 20 hours after petitioner
met with his assistant, the Hearing Officer, after reading the
misbehavior report into the record and allowing petitioner to
plead not guilty, adjourned the hearing for a week during which
time petitioner was provided with the investigative report.
Accordingly, we find that petitioner was not prejudiced by any
purported error in commencing the hearing approximately four
hours too early, and petitioner had an adequate amount of time to
review the relevant documents and prepare a defense (see Matter
of Gray v Kirkpatrick, 59 AD3d 1092, 1093 [2009]; Matter of
Rodriguez v Herbert, 270 AD2d 889, 889 [2000]).

     Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ., concur.
                              -3-                  520490

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
