                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 11, 2014                    518438
________________________________

In the Matter of GEORGE HAYES,
                    Petitioner,
      v
                                             MEMORANDUM AND JUDGMENT
BRIAN FISCHER, as Commissioner
   of Corrections and Community
   Supervision,
                    Respondent.
________________________________


Calendar Date:    October 21, 2014

Before:    McCarthy, J.P., Garry, Rose, Lynch and Devine, JJ.

                              __________


        George Hayes, Dannemora, 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 certain prison disciplinary rules.

      Petitioner commenced this CPLR article 78 proceeding
challenging an administrative determination finding him guilty of
violating, as is relevant herein, the prison disciplinary rules
that prohibit possession of alcohol, possession of an altered
item, smuggling and property damage.1 The charges stem from the


    1
        Although petitioner was also found guilty of refusing a
direct order and a urinalysis testing violation as charged in a
separate misbehavior report, he has abandoned any challenge
                              -2-                  518438

discovery of a 54-quart bin of fermenting liquid containing fruit
and socks filled with bread. A rubber hose – later identified as
missing from the mess hall – was also in the bin that,
apparently, was being used as a syphon. Numerous empty clear
plastic bottles were also discovered following a search of
petitioner's cell.

      The misbehavior report, related documentation and testimony
at the hearing provide substantial evidence to support the
determination of guilt (see Matter of Sorrentino v Fischer, 78
AD3d 1354, 1355 [2010]; Matter of Butler v Fischer, 74 AD3d 1651,
1652 [2010]). To the extent that petitioner claims that he was
improperly denied the right to call a witness, the record
establishes that the Hearing Officer appropriately determined
that the requested testimony was irrelevant (see Matter of
Credell v Fischer, 120 AD3d 857, 857-858 [2014]; Matter of
Reynoso v Fischer, 73 AD3d 1315, 1316 [2010]). Petitioner's
remaining contentions, to the extent they are discernable, have
been reviewed and found to be without merit.

     McCarthy, J.P., Garry, Rose, Lynch and Devine, JJ., concur.


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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court


thereto by not advancing any argument regarding the same in his
brief.
