                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 28, 2016                     522140
________________________________

In the Matter of EDWARD L.
   NEW III,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
LIEUTENANT VASILE, as Hearing
   Officer, et al.,
                    Respondents.
________________________________


Calendar Date:   June 6, 2016

Before:   Peters, P.J., McCarthy, Rose, Clark and Aarons, JJ.

                             __________


     Edward L. New III, Buffalo, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Frank Brady
of counsel), for respondents.

                             __________


      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 Commissioner of Corrections
and Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner approached a correction officer, informed the
officer that he had information to tell him and then the pair
went into a closet. Once inside, petitioner grabbed the
officer's genitals and said, "[W]e are alone just me and you."
As a result of this incident, petitioner was charged in a
misbehavior report with engaging in forcible touching, assaulting
staff, making threats and interfering with an employee.
Following a tier III disciplinary hearing, petitioner was found
guilty as charged. The determination was affirmed upon
                              -2-                  522140

administrative appeal, and this CPLR article 78 proceeding
ensued.

      We confirm. The misbehavior report, related documentation
and detailed testimony of its author provide substantial evidence
to support the determination of guilt (see Matter of Pellot v
Fischer, 67 AD3d 1231, 1231 [2009]; Matter of Taveras v Fischer,
59 AD3d 827, 828 [2009], lv denied 13 NY3d 702 [2009]).
Petitioner's claim that he did not intentionally touch or grab
the correction officer presented a credibility issue for the
Hearing Officer to resolve (see Matter of White v Prack, 131 AD3d
1333, 1334 [2015], lv denied 26 NY3d 920 [2016]). As to
petitioner's claim that no force was used in the incident,
forcible touching includes, among other conduct, grabbing (see 7
NYCRR 270.2 [B] [2] [ii]). Finally, petitioner's remaining
claims, including his assertion that the Hearing Officer was
biased and that the penalty imposed was excessive, are
unpreserved for our review (see Matter of Wigfall v Department of
Corr. Servs., 100 AD3d 1211, 1213 [2012]; Matter of Maldonado v
New York State Dept. of Corr. Servs., 97 AD3d 873, 874 [2012]).

      Peters, P.J., McCarthy, Rose, Clark and Aarons, JJ.,
concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
