                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 14, 2016                    521505
________________________________

In the Matter of JASON SMITH,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   February 23, 2016

Before:   Peters, P.J., Garry, Lynch and Devine, JJ.

                             __________


     Jason Smith, 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 the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating a
prison disciplinary rule.

      Petitioner was ordered to submit a urine specimen for
testing and it twice tested positive for the presence of K2,
synthetic marihuana. As a result, he was charged in a
misbehavior report with using an intoxicant. Following a tier
III disciplinary hearing, he was found guilty and the
determination was later affirmed on administrative appeal. This
CPLR article 78 proceeding ensued.
                              -2-                521505

      We affirm. The misbehavior report, positive drug test
results and related documentation provide substantial evidence to
support the finding that petitioner had used synthetic marihuana,
an intoxicant (see Matter of Martinez v Annucci, 134 AD3d 1380,
1380 [2015]). With regard to petitioner's contention that he was
not given adequate notice of the substance he was charged with
ingesting, in that the misbehavior report describes the substance
as "K2" whereas the laboratory results list it as "K-2," "K2" or
"K2-2," the transcript of the hearing reflects that he was aware
that these were all short-hand references to synthetic marihuana,
the substance for which he twice tested positive.

      Moreover, the record establishes that petitioner was
provided with all of the testing documentation required to be
disclosed (see 7 NYCRR 1020.4 [f] [1] [iv]; Matter of Paddyfote v
Fischer, 118 AD3d 1240, 1241 [2014]). In addition, petitioner's
employee assistant permitted him to review – although not retain
– the requested documents that existed; although advised that
they would be available at the hearing, he did not ask for
additional time to review any of the documents at the hearing.
Petitioner was granted an adjournment at the outset of the
hearing in order to allow him to obtain employee assistance, and
he has not demonstrated that he received inadequate assistance
premised upon the assistant's refusal to allow him to retain the
documents or on any other ground (see Matter of Martin v Fischer,
109 AD3d 1026, 1027 [2013]). Likewise without merit is
petitioner's contention that he was denied the right to call as a
witness an employee from the Siemens Healthcare Diagnostic
Company, the urinalysis equipment manufacturer. The documentary
evidence establishes that the Hearing Officer contacted the
company, which declined to provide an employee representative to
testify at petitioner's hearing, and, accordingly, petitioner was
not denied the conditional right to call witnesses (see 7 NYCRR
254.5; Matter of Texeira v Fischer, 26 NY3d 230, 233-235 [2015];
Matter of Broadie v Annucci, 131 AD3d 1324, 1325 [2015]).
Finally, while the transcript contains recurring inaudible gaps,
we find that it was not so incomplete as to preclude meaningful
review (see Matter of Ramsey v Fischer, 93 AD3d 1000, 1002
[2012], lv dismissed 19 NY3d 955 [2012]). Petitioner's remaining
claims are either unpreserved or lack merit.
                              -3-                  521505

     Peters, P.J., Garry, Lynch and Devine, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
