                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 15, 2016                   521033
________________________________

In the Matter of WILLIAM
   BARTELLO,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
   et al.,
                    Respondents.
________________________________


Calendar Date:   August 8, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

                             __________


     William Bartello, Elmira, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondents.

                             __________



      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 Commissioner of Corrections
and Community Supervision finding petitioner guilty of violating
a prison disciplinary rule.

      After an odor of marihuana was detected, the cells in the
area were searched and a two-inch sharpened metal object was
found in a bag in petitioner's cell. Petitioner was charged in a
misbehavior report with possession of a weapon and, following a
tier III disciplinary hearing, he was found guilty as charged.
The determination was upheld on administrative appeal, with a
                              -2-                521033

reduced penalty, and this CPLR article 78 proceeding followed.

      The misbehavior report and testimony of its author, who
searched petitioner's cell and found the weapon, combined with
the documentary evidence and photographs of the weapon, provide
substantial evidence to support the determination (see Matter of
Shufelt v Annucci, 138 AD3d 1336, 1337 [2016]; Matter of Giano v
Prack, 138 AD3d 1285, 1285 [2016]). Contrary to petitioner's
claim, the misbehavior report provided sufficient notice of the
charge, including the rule violated and that the basis of the
charge was the discovery of the piece of metal (see Matter of
Hyatt v Annucci, 137 AD3d 1382, 1382 [2016]). We also reject his
claim that he was denied the opportunity to observe the cell
search in violation of Department of Corrections and Community
Supervision Directive No. 4910 (V) (C) (1). This regulation "is
inapplicable given that petitioner was not removed from his cell
for the purpose of conducting the search" but, rather, he was
already out of his cell at church at the time of the search
(Matter of Horton v Annucci, 133 AD3d 1002, 1003 [2015]).
Petitioner's contention that the weapon was planted and denial
that he possessed it created a credibility question for the
Hearing Officer (see Matter of Lacey v Annucci, 138 AD3d 1329,
1330 [2016]). Further, the discrepancies between the misbehavior
report and other evidence regarding who authorized the cell
searches, what the weapon was wrapped in and the cell number
where the weapon was found were explained through testimony at
the hearing, which the Hearing Officer credited (see Matter of
Tavarez v Annucci, 134 AD3d 1374, 1375 [2015]; Matter of Bilal v
Fischer, 92 AD3d 1046, 1047 [2012]). Finally, the Hearing
Officer did not err in refusing to recall the correction officer
who authored the misbehavior report, as petitioner "had an
opportunity to question him earlier in the hearing and failed to
demonstrate that his further testimony would not be redundant"
(Matter of Huggins v Goord, 28 AD3d 891, 892 [2006]).
Petitioner's remaining claims also lack merit.

      McCarthy, J.P., Egan Jr., Lynch, Clark 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
