                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 11, 2014                   517674
________________________________

In the Matter of WILLIAM J.
   CLARK,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   August 4, 2014

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

                             __________


     William J. Clark, Albion, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff 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 which found petitioner
guilty of violating certain prison disciplinary rules.

      Petitioner, a prison inmate, was charged in a misbehavior
report with making threats, violent conduct and creating a
disturbance. The charges arose from an incident in the prison
law library on July 13, 2012 in which petitioner tried to confirm
the name of the father of a correction officer assigned to the
library and where his family lived, and petitioner threatened
that if that officer did not approve all of his requests for
special access to the library, when he got out, he would "burn
your house down with you and all your family in it." Following a
                              -2-                517674

tier III disciplinary hearing, petitioner was found guilty of the
charges, and that determination was affirmed on administrative
appeal. This CPLR article 78 proceeding ensued.

      We confirm. The misbehavior report and the testimony of
its author, at whom petitioner's conduct was directed, provided
substantial evidence supporting the determination of guilt (see
Matter of Guillory v Fischer, 111 AD3d 1005, 1005 [2013]; Matter
of Blocker v Fischer, 107 AD3d 1285, 1286 [2013]). Petitioner's
denial that the incident occurred as described and claims of
retaliation created credibility issues for the Hearing Officer to
resolve (see Matter of Spikes v Fischer, 100 AD3d 1231, 1231
[2012], lv denied 20 NY3d 862 [2013]). Contrary to his
arguments, the Hearing Officer properly denied petitioner's
request to call certain correction officers, inmates and his
mother based upon the fact that they were not present for the
incident and their testimony would have been irrelevant to the
charges (see Matter of Gaston v Fischer, 109 AD3d 1063, 1064
[2013]). Petitioner was not deprived of the right to call
certain other inmates as witnesses, including those present
during the incident; all of them signed witness refusal forms
indicting that they were not present and/or did not see or hear
anything, which were read into the record (see Matter of McFadden
v Venettozzi, 65 AD3d 1401, 1402 [2009]; Matter of Martinez v
Selsky, 53 AD3d 989, 989 [2008]). Although not required (see
Matter of McGriff v Fischer, 62 AD3d 1058, 1058 [2009]), the
Hearing Officer interviewed the inmates identified as present,
who confirmed their refusal to testify for the reasons stated.
Finally, the record contains no support for petitioner's
allegation of hearing officer bias (see Matter of Guillory v
Fischer, 111 AD3d at 1005-1006) or for his remaining claims.

     Lahtinen, J.P., Garry, Rose, Devine and Clark, JJ., concur.
                              -3-                  517674

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
