                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 26, 2017                   522879
________________________________

In the Matter of JHAFFRE
   McCLAIN,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
DONALD VENETTOZZI, as Acting
   Director of Special Housing
   and Inmate Disciplinary
   Programs,
                    Respondent.
________________________________


Calendar Date:   November 29, 2016

Before:   McCarthy, J.P., Egan Jr., Rose, Mulvey and Aarons, JJ.

                             __________


     Jhaffre McClain, Stormville, 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 the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner was charged in a misbehavior report with
fighting, violent conduct, refusing a direct order and creating a
disturbance. According to the report, petitioner was among a
group of six inmates who engaged in a fight in the exercise yard.
Following a tier III disciplinary hearing, petitioner was found
guilty of all charges. This determination was affirmed on
administrative appeal, and this CPLR article 78 proceeding
                              -2-                522879

ensued.

      We confirm. The misbehavior report, unusual incident
report, use of force report and hearing testimony provide
substantial evidence supporting the determination of guilt (see
Matter of Davis v Annucci, 123 AD3d 1279, 1279 [2014]; Matter of
Rivera v Fischer, 118 AD3d 1194, 1195 [2014]). The testimony of
petitioner and his inmate witnesses that petitioner was not
involved in the fight presented a credibility issue for the
Hearing Officer to resolve (see Matter of Hyatt v Annucci, 141
AD3d 977, 978 [2016]; Matter of James v New York State Dept. of
Corr. & Community Supervision, 127 AD3d 1537, 1537-1538 [2015]).

      Turning to petitioner's procedural arguments, we conclude
that petitioner was given adequate notice of the charges against
him. Although the initial misbehavior report identified
petitioner as the inmate charged and set forth the rules violated
and the date, time and place of the incident, the report
apparently did not reference petitioner's name when listing the
names of the participants in the description of incident
section.1 The Hearing Officer read his copy of the misbehavior
report into the record, which included petitioner in the
description of the incident. The hearing thereafter was
adjourned for four days, providing petitioner with time to
prepare a defense. Under these circumstances, and inasmuch as
petitioner has failed to demonstrate that he was prejudiced by
the error, we find that petitioner was provided with sufficient
notice of the charges to enable him to prepare a defense (see
Matter of Toro v Fischer, 104 AD3d 1036, 1037 [2013]; Matter of
Stinson v Prack, 87 AD3d 1218, 1219 [2011]; Matter of Moore v
Senkowski, 13 AD3d 683, 684 [2004]).

      We also are unpersuaded by petitioner's contention that he
improperly was denied the right to call certain inmate witnesses.
The identified witness never agreed to testify, and the reason


    1
        The correction officer who authored the report later
testified that the omission of petitioner's name in the
description section was a computer error and that petitioner was
a participant in the fight.
                              -3-                  522879

for his refusal was set forth in the record (see Matter of
Sherman v Annucci, 142 AD3d 1196, 1197-1198 [2016]; Matter of
Hill v Selsky, 19 AD3d 64, 66-67 [2005]). Although petitioner
also requested the testimony of unidentified inmates that were in
the yard near where the fight occurred, the record reflects that
there were over 100 inmates in the yard at the time of the fight.
Inasmuch as the five other alleged participants in the fight
testified that petitioner was not involved, the Hearing Officer
properly denied the testimony of the unidentified witnesses as
redundant (see Matter of White v Fischer, 121 AD3d 1478, 1479
[2014]; Matter of Williams v Prack, 114 AD3d 979, 980 [2014];
Matter of Ford v Smith, 23 AD3d 874, 875 [2005], lv denied 6 NY3d
708 [2006]). Finally, the record reflects that petitioner
received meaningful employee assistance, and he has not
demonstrated that he was prejudiced by the assistant's alleged
deficiencies (see Matter of Genyard v Annucci, 136 AD3d 1091,
1091 [2016]; Matter of Shoga v Annucci, 132 AD3d 1027, 1028
[2015]).

      McCarthy, J.P., Egan Jr., Rose, Mulvey and Aarons, JJ.,
concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
