                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 30, 2014                   517684
________________________________

In the Matter of IMHOTEP
   H'SHAKA,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

BRIAN FISCHER, as Commissioner
   of Corrections and Community
   Supervision,
                    Respondent.
________________________________


Calendar Date:   September 16, 2014

Before:   Peters, P.J., Stein, McCarthy, Devine and Clark, JJ.

                             __________


     Imhotep H'Shaka, Dannemora, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Martin A.
Hotvet of counsel), for respondent.

                             __________


      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Franklin County)
to review a determination of respondent directing that petitioner
be placed in administrative segregation.

      Following a hearing, petitioner was placed in
administrative segregation due to his prior violent conduct and
his role in an unauthorized organization (Matter of H'Shaka v
Fischer, 100 AD3d 1056, 1056-1057 [2012]). Inasmuch as
petitioner had been improperly denied his conditional, regulatory
right to call witnesses, this Court remitted the matter for a new
hearing (id. at 1057). Upon rehearing, the Hearing Officer again
adopted the recommendation that petitioner be administratively
segregated, and that determination was affirmed on administrative
                               -2-               517684

appeal.   This proceeding ensued.

      A determination to administratively segregate an inmate
will be upheld if it is supported by substantial evidence "that
the inmate's presence in [the] general population would pose a
threat to the safety and security of the facility" (7 NYCRR 301.4
[b]; accord Matter of Rivera v Prack, 97 AD3d 879, 880 [2012]).
Moreover, as this Court has previously recognized, "[i]n the
volatile atmosphere of a prison, an inmate easily may constitute
an unacceptable threat to the safety of other prisoners and
guards even if he himself has committed no misconduct; rumor,
reputation, and even more imponderable factors may suffice to
spark potentially disastrous incidents" (Matter of Wright v
Commissioner of Correctional Servs., 63 AD3d 1471, 1472 [2009]
[internal quotation marks and citations omitted]). Here, the
written recommendation and detailed confidential testimony
provide substantial evidence to support the determination that
petitioner poses a threat to the safety of the general prison
population and that administrative segregation is required (see
Matter of Rivera v Prack, 97 AD3d at 880; Matter of Wright v
Commissioner of Correctional Servs., 63 AD3d at 1472-1473).

      Contrary to his further arguments, "[p]etitioner has not
met his burden of establishing that he was denied a fair hearing"
(Matter of Fludd v New York State Dept. of Correctional Servs.,
62 AD3d 1149, 1153 [2009], lv denied 13 NY3d 705 [2009]). His
assertion that the Hearing Officer was the subordinate of the
author of the administrative segregation recommendation is not
supported by the record. Nor did the Hearing Officer err in
denying petitioner's request to call witnesses whose testimony
would be immaterial or redundant in the lengthy rehearing (see
Matter of Rivera v Prack, 97 AD3d at 880; Matter of Fludd v New
York State Dept. of Correctional Servs., 62 AD3d at 1153).
Finally, petitioner has failed to demonstrate that the decision
herein flowed from the Hearing Officer's alleged bias.

      Petitioner's remaining arguments have been considered and
found to be lacking in merit or are otherwise not properly before
us.
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      Peters, P.J., Stein, McCarthy, Devine and Clark, JJ.,
concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
