                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 15, 2016                   522837
________________________________

In the Matter of MARCUS
   TELESFORD,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   October 25, 2016

Before:   Peters, P.J., McCarthy, Garry, Egan Jr. and Rose, JJ.

                             __________


     Marcus Telesford, Malone, 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 pat frisk of petitioner revealed a concealed
object, he grabbed the correction officer's right hand in an
attempt to thwart that officer's attempt to recover the object,
and use of force was required to subdue petitioner and recover
the object. As a result of the incident, petitioner was charged
in a misbehavior report with engaging in violent conduct,
assaulting staff and interfering with staff. Following a tier
III disciplinary hearing, petitioner was found guilty of the
charges, and that determination was upheld on administrative
                              -2-                522837

appeal. Petitioner then commenced this CPLR article 78
proceeding.

      We confirm. The misbehavior report, testimony at the
hearing, including the testimony of the correction officer who
authored the misbehavior report, and documentary evidence provide
substantial evidence to support the determination of guilt (see
Matter of Boyd v Prack, 136 AD3d 1136, 1136 [2016]; Matter of
Douglas v Fischer, 126 AD3d 1244, 1245 [2015], lv denied 26 NY3d
904 [2015]). To the extent that petitioner denied, among other
things, having attempted to assault the correction officer who
conducted the pat frisk and contended that the misbehavior report
was authored in retaliation for previous grievances that he had
filed, these claims raised credibility issues for the Hearing
Officer to resolve (see Matter of Garrow v Annucci, 141 AD3d
1046, 1047 [2016]; Matter of Tuitt v Martuscello, 106 AD3d 1355,
1356 [2013], lv denied 21 NY3d 865 [2013]).

      Turning to petitioner's procedural contentions, our review
of the record establishes that petitioner received adequate
employee assistance. Petitioner was provided with those
documents that were relevant and available, and any deficiencies
in assistance were remedied by the Hearing Officer who read into
the record the unusual incident report, use of force report and
related documentation (see Matter of Hernandez v Fischer, 111
AD3d 1042, 1043 [2014]; Matter of Phelps v Fischer, 108 AD3d
1003, 1004 [2013], appeal dismissed 22 NY3d 1046 [2014]).
Moreover, petitioner was provided with an opportunity to review
photographs taken after the incident and a use-of-force video.
Contrary to petitioner's claim, he was not denied any relevant
witnesses as the requested witnesses were either not present
during the incident or would have provided testimony that was
redundant or immaterial (see Matter of Sanders v Annucci, 128
AD3d 1156, 1157 [2015], appeal dismissed 26 NY3d 964 [2015];
Matter of H'Shaka v Fischer, 121 AD3d 1455, 1456 [2014], lv
denied 24 NY3d 913 [2015]). Petitioner's remaining contentions
have been considered and are unavailing.

      Peters, P.J., McCarthy, Garry, Egan Jr. and Rose, JJ.,
concur.
                              -3-                  522837

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
