                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 15, 2016                   521893
________________________________

In the Matter of JOSE BERMUDEZ,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
THOMAS GRIFFIN, as
   Superintendent of Eastern
   Correctional Facility,
                    Respondent.
________________________________


Calendar Date:   August 8, 2016

Before:   Egan Jr., J.P., Lynch, Rose Clark and Mulvey, JJ.

                             __________


     Jose Bermudez, Elmira, 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.

      While a female correction officer was releasing a group of
inmates from the block for recreation, petitioner informed her
that he was entitled to take a medical shower on the block. The
officer checked the medical permits and discovered that
petitioner's daily shower was to occur at a different location.
When she so informed petitioner, he became argumentative in the
presence of three porters who stopped their work to listen to the
exchange. As a result of this incident, petitioner was charged
in a misbehavior report with making a false statement, creating a
disturbance, interfering with an employee and refusing a direct
                              -2-                521893

order. Following a tier II disciplinary hearing, he was found
guilty of all of the charges except for refusing a direct order.
After the determination was affirmed on administrative appeal,
petitioner commenced this CPLR article 78 proceeding challenging
it.

      We confirm. The detailed misbehavior report and related
documentation, together with the testimony of the correction
officers who authored and endorsed the misbehavior report,
provide substantial evidence supporting the determination of
guilt (see Matter of Alsaifullah v Fischer, 118 AD3d 1239, 1240
[2014], lv denied 24 NY3d 906 [2014]; Matter of Cornelius v
Fischer, 98 AD3d 779, 780 [2012]). Petitioner's contrary version
of events presented a credibility issue for the Hearing Officer
to resolve (see Matter of Grant v Rock, 122 AD3d 1225, 1226
[2014]; Matter of Vargas v Fischer, 121 AD3d 1138, 1138 [2014],
lv dismissed 25 NY3d 1197 [2015]). In addition, there is no
merit to petitioner's claim that he was improperly denied certain
go-around slips, as the record reveals that they did not exist
despite the Hearing Officer's diligent efforts to locate them
(see Matter of Flores v Fischer, 110 AD3d 1302, 1303 [2013], lv
denied 22 NY3d 861 [2014]; see also Matter of Mendez v Annucci,
126 AD3d 1216, 1217 [2015]). Furthermore, petitioner was not
improperly removed from the hearing, as he engaged in disruptive
behavior after learning of the disposition and penalty (see
Matter of Micolo v Annucci, 140 AD3d 1442, 1443 [2016]; Matter of
Garcia v Prack, 128 AD3d 1244, 1245 [2015]). Inasmuch as
petitioner has already served the penalty, which did not entail
any loss of good time, his challenge to it is now moot (see
Matter of Adams v Superintendent Bollinier, 118 AD3d 1351, 1351
[2014]; Matter of Sheard v Fischer, 107 AD3d 1261, 1262 [2013]).
Petitioner's remaining contentions are either unpreserved for our
review or are lacking in merit.

     Egan Jr., J.P., Lynch, Rose, Clark and Mulvey, JJ., concur.
                              -3-                  521893

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
