                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 16, 2016                     520943
________________________________

In the Matter of CEDRIC V.
   DARRETT,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   May 3, 2016

Before:   Lahtinen, J.P., Garry, Rose, Devine and Aarons, JJ.

                               __________


     Cedric V. Darrett, Auburn, 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.

      Petitioner was charged in a misbehavior report with
disobeying a direct order, creating a disturbance, interfering
with an employee, violating visiting room procedures, smuggling
and failing to comply with frisk procedures. According to the
misbehavior report, petitioner and his son acted suspiciously
during a visit and repeatedly looked over at the correction
officer on duty. After petitioner nervously asked to use the
bathroom, the correction officer observed petitioner squatting in
front of the urinal, reaching between his legs and apparently
                              -2-                520943

inserting something into his rectum. A strip search of
petitioner was ordered, during which petitioner was argumentative
and uncooperative, thereby resulting in multiple direct orders
for him to keep his hands on the wall. When a string was
observed hanging from petitioner's buttocks, several direct
orders to remove it were issued before petitioner complied. The
string had a loop and knot on one end but nothing attached to it.


      Following a tier III disciplinary hearing, petitioner was
found guilty of all charges with the exception of creating a
disturbance and refusing to comply with frisk procedures. The
determination was modified on administrative appeal to the extent
that the charge of interference with an employee was dismissed,
but was otherwise affirmed. This CPLR article 78 proceeding
ensued.

      We confirm. Contrary to petitioner's contention, the
misbehavior report and testimony from the correction officer who
authored it provide substantial evidence to support the
determination of guilt, notwithstanding that no contraband was
found (see Matter of Padilla v Fischer, 76 AD3d 742, 742 [2010],
lv denied 15 NY3d 714 [2010]; Matter of Spulka v Goord, 12 AD3d
1004, 1005 [2004]). Furthermore, we conclude that there is
nothing inconsistent with the dismissal of the charge of
interference with an employee and a guilty finding on the charges
of refusing a direct order, smuggling and violating visiting room
procedures. Petitioner's remaining contention that the string
and videotape of petitioner in the bathroom should have been
produced at the hearing is not preserved for our review as he did
not request such evidence before or during the hearing (see
Matter of Joseph v Prack, 133 AD3d 1014, 1015 [2015]; Matter of
Gressler v Fischer, 108 AD3d 895, 896 [2013]).

      Lahtinen, J.P., Garry, Rose, Devine and Aarons, JJ.,
concur.
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      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
