                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 23, 2015                    519202
________________________________

In the Matter of DUPREE
   HARRIS,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
JOSEPH SMITH, as Superintendent
   of Shawangunk Correctional
   Facility,
                    Respondent.
________________________________


Calendar Date:   February 24, 2015

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

                             __________


     Dupree Harris, Wallkill, 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 Ulster County) to
review a determination of respondent which found petitioner
guilty of violating a prison disciplinary rule.

      During the course of an investigation in which confidential
information was received, a correction official determined that
petitioner facilitated a third-party telephone call for another
inmate. As a result, he was charged in a misbehavior report with
making a third-party telephone call and using another inmate's
personal identification number (hereinafter PIN). Following a
tier II disciplinary hearing, petitioner was found guilty of
making a third-party telephone call, but not guilty of using an
inmate's PIN. The determination was later affirmed on
                              -2-                519202

administrative appeal and this CPLR article 78 proceeding ensued.

      We confirm. Substantial evidence, consisting of the
detailed misbehavior report, hearing testimony – including
petitioner's testimony in which he admitted to making the
telephone call at issue and allowing another inmate to
participate in the call – and the audio recording of the
telephone call, supports the determination of guilt (see Matter
of Haigler v Fischer, 119 AD3d 1261, 1262 [2014], lv denied 24
NY3d 908 [2014]; Matter of Carrasco v Fischer, 96 AD3d 1315, 1316
[2012]). Moreover, contrary to petitioner's claim, the exclusion
of the transcript of the recorded telephone conversation does not
preclude meaningful review of the matter inasmuch as the
recording is part of the record and he was afforded the
opportunity to listen to the recording during the hearing and
respond to its contents (see Matter of Davila v Prack, 113 AD3d
978, 978 [2014], lv denied 23 NY3d 904 [2014]).

      Finally, the record does not support petitioner's
contention that the Hearing Officer relied upon the confidential
information in rendering the determination (see Matter of Credell
v Fischer, 120 AD3d 857, 858 [2014]; Matter of Aguirre v Fischer,
111 AD3d 1219, 1220 [2013]). Petitioner's remaining claims have
been examined and found to be without merit.

     Peters, P.J., Lahtinen, Egan Jr. and Lynch, JJ., concur.
                              -3-                  519202

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
