                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 14, 2016                    521517
________________________________

In the Matter of KENNETH
   McMASTER,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   February 23, 2016

Before:   Peters, P.J., McCarthy, Rose and Clark, JJ.

                             __________


     Kenneth McMaster, Malone, 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
possessing excess stamps, gang-related material, facility
employees' personal information and contraband after a search of
his cell revealed 247 postage stamps, matches with strikers,
pages torn from a telephone book, sheets of paper containing
other inmates' personal information, an address book containing
the phone number and home address of a facility employee,
handwritten material containing gang-related references and two
packages containing a green leafy substance. When the green
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leafy substance later tested positive for marihuana, he was
charged in a second misbehavior report with possessing marihuana.
Following a tier III disciplinary hearing, he was found guilty of
the charges and this determination was affirmed on administrative
appeal. This CPLR article 78 proceeding ensued.

      We confirm. The misbehavior reports and related
documentation, including the positive test results and the
hearing testimony of the correction officers familiar with the
incident, provide substantial evidence supporting the
determination of guilt (see Matter of Williams v Annucci, 120
AD3d 1479, 1480 [2014], lv denied 24 NY3d 911 [2014]; Matter of
Curry v Fischer, 113 AD3d 981, 982 [2014]). Petitioner's claim
that the misbehavior reports were written in retaliation for
prior grievances that he had filed presented a credibility issue
for the Hearing Officer to resolve (see Matter of Marino v
Martuscello, 131 AD3d 749, 750 [2015], lv denied 26 NY3d 910
[2015]; Matter of Donah v Prack, 127 AD3d 1538, 1538 [2015]).

      Turning to petitioner's procedural claims, we reject his
contention that he was not given proper notice of the second
misbehavior report. The record reflects that when petitioner
advised the Hearing Officer that he had not received a copy of
that report, the Hearing Officer provided him with a copy and the
hearing was adjourned for two weeks in order to give him time to
prepare a defense (see Matter of Boggs v Martuscello, 84 AD3d
1667, 1668 [2011]). Although petitioner also contends that he
was denied adequate employee assistance, the Hearing Officer
remedied any deficiencies and petitioner has not demonstrated
that he was prejudiced (see Matter of Pooler v Fischer, 107 AD3d
1256, 1257 [2013], lv denied 22 NY3d 855 [2013]; Matter of
Procopio v Fischer, 100 AD3d 1292, 1293 [2012]). Finally,
contrary to petitioner's contention, he was not improperly denied
the right to call certain inmate witnesses. Inasmuch as his
requested inmate witnesses had not previously agreed to testify,
the Hearing Officer's inquiry into the witnesses' refusals
through the correction officers who obtained the refusals
adequately protected petitioner's right to call witnesses (see
Matter of Vansteenburg v State of N.Y. Dept. of Corrs. &
Community Supervision, 128 AD3d 1295, 1296 [2015]; Matter of Hill
v Selsky, 19 AD3d 64, 66 [2005]). Petitioner's remaining claims,
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including that the hearing was not timely commenced, have been
considered and found to be without merit.

     Peters, P.J., McCarthy, Rose and Clark, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
