                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 17, 2016                 522051
________________________________

In the Matter of YUSUF SPARKS,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
   et al.,
                    Respondents.
________________________________


Calendar Date:   October 20, 2016

Before:   McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.

                             __________


      Whiteman Osterman & Hanna LLP, Albany (Jon E. Crain of
counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Zainab A.
Chaudhry of counsel), for respondents.

                             __________


McCarthy, J.P.

      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.

      After prison officials learned that petitioner had
swallowed an object during a pat frisk, he was escorted to the
hospital where an X ray revealed that he had a scalpel or razor
in his digestive tract. Petitioner was placed on a contraband
watch for the next few days, but no scalpel or similar object was
                              -2-                522051

recovered. As a result, petitioner was charged in a misbehavior
report with smuggling, possession of a contraband weapon and
possession of an unauthorized item. Following a tier III
disciplinary hearing, petitioner was found guilty of the charges.
The determination was affirmed on administrative appeal, and this
CPLR article 78 followed.

      We confirm. The misbehavior report, hearing testimony and
the related documentary evidence, including the X rays, provide
substantial evidence to support the determination of guilt (see
Matter of Hall v Fischer, 87 AD3d 1235, 1236 [2011]; Matter of
Scott v Fischer, 75 AD3d 962, 962 [2010]; Matter of Gee v Goord,
21 AD3d 636, 637 [2005]). Although petitioner contends that the
determination should be annulled because no contraband was
recovered as a result of the contraband watch, we disagree. The
Hearing Officer found credible the X-ray evidence, which we have
examined, the testimony of the technician who interpreted it and
the misbehavior report wherein the author testified that
petitioner had told him that he disposed of the contraband
through defecation (see Matter of Hall v Fischer, 87 AD3d at
1236; Matter of Scott v Fischer, 75 AD3d at 963).

      Turning to petitioner's procedural contentions, contrary to
petitioner's claim, we do not find that he was denied adequate
employee assistance. The record reveals that the employee
assistant performed the services required. Further, inasmuch as
the employee assistant "may," but is not required to, "assist the
inmate in obtaining documentary evidence" (7 NYCRR 251-4.2),
petitioner's claim that he was denied effective employee
assistance because his assistant failed to obtain copies of
Department of Corrections and Community Supervision directives is
without support (cf. Matter of Guillory v Annucci, 125 AD3d 1024,
1025 [2015], lv denied 25 NY3d 905 [2015]). Moreover, to the
extent that petitioner claims that he was not provided with the
requested directives governing the procedures for the handling
and search of contraband (see generally 7 NYCRR 1010.4), those
directives, and any alleged failure by prison officials to adhere
to the procedures established therein, are irrelevant. Notably,
no contraband was recovered from petitioner's fecal matter, and
such evidence was not the evidentiary basis supporting the
Hearing Officer's determination of guilt (see Matter of Jones v
                              -3-                  522051

Fischer, 139 AD3d 1219, 1220 [2016]; Matter of Mitchell v Bezio,
69 AD3d 1281, 1282 [2010]). While petitioner also avers that he
was improperly denied the right to call certain witnesses at the
hearing, the record demonstrates that petitioner specifically and
intelligently told the Hearing Officer during the hearing that he
waived his right to call any further witnesses (see Matter of
Brown v Barkley, 67 AD3d 1147, 1148 [2009], lv denied 14 NY3d 702
[2010]; Matter of Wilkerson v Coombe, 242 AD2d 834, 835 [1997]).
In any event, petitioner failed to demonstrate that any of the
requested witnesses would have provided testimony relevant to the
charges or material to any evidence in dispute (see Matter of
Miller v Annucci, 131 AD3d 1304, 1305 [2015]). Petitioner's
remaining contentions, including his claim that the penalty
imposed was excessive, have been examined and found to be without
merit.

     Lynch, Devine, Mulvey and Aarons, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
