                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 2, 2017                   523203
________________________________

In the Matter of DERRICK
   TIGNER,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   November 29, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Lynch and Aarons, JJ.

                             __________


     Derrick Tigner, Auburn, 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 respondent finding petitioner guilty of
violating certain prison disciplinary rules.

      After a correction officer observed petitioner wearing a
watch that was prohibited and attempted to escort petitioner to
the package room to have that watch removed from the facility,
petitioner became verbally combative, waved his hands
aggressively and refused certain commands given by the correction
officer. As a result, petitioner was charged in a misbehavior
report with making threats, refusing a direct order, creating a
disturbance, demonstrating, engaging in violent conduct and
violating movement procedures. Following a tier III disciplinary
                              -2-                523203

hearing, petitioner was found not guilty of demonstrating and
guilty of the remaining charges. The determination was affirmed
upon administrative appeal, and this CPLR article 78 proceeding
ensued.

      We confirm. The misbehavior report and the hearing
testimony of the correction officer who authored that report
provide substantial evidence supporting the determination of
guilt (see Matter of Boyd v Prack, 136 AD3d 1136, 1136 [2016];
Matter of Wilson v Annucci, 129 AD3d 1422, 1422 [2015]; Matter of
Douglas v Fischer, 126 AD3d 1244, 1245 [2015], lv denied 26 NY3d
904 [2015]). The conflicting narrative of the incident offered
in the testimony of petitioner and his inmate witnesses presented
a credibility issue for the Hearing Officer to resolve (see e.g.
Matter of Adams v Fischer, 116 AD3d 1269, 1270 [2014]; Matter of
Espinal v Fischer, 114 AD3d 978, 979 [2014]).

      Turning to petitioner's procedural contentions, the
misbehavior report was sufficiently detailed in terms of the
time, place and conduct at issue to enable petitioner to prepare
an adequate defense (see Matter of Bailey v Annucci, 142 AD3d
1195, 1196 [2016]; Matter of Cognata v Fischer, 85 AD3d 1456,
1457 [2011]; see also 7 NYCRR 251-3.1 [c] [1], [4]). While
petitioner avers that he was improperly denied the right to call
certain witnesses at the hearing, the testimony of the requested
witnesses regarding the log book entries would have been
immaterial and unnecessary given that the misbehavior report
provided adequate detail of the incident (see 7 NYCRR 254.5 [a];
Matter of Burgess v Bellnier, 138 AD3d 989, 990 [2016]; Matter of
Gaston v Fischer, 109 AD3d 1063, 1064 [2013]; cf. Matter of
Moncrieffe v Goord, 249 AD2d 715, 716 [1998]). We have examined
petitioner's remaining contentions and find them to be without
merit.

      Peters, P.J., McCarthy, Egan Jr., Lynch and Aarons, JJ.,
concur.
                              -3-                  523203

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
