                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 2, 2017                   523049
________________________________

In the Matter of ANDRE KIRBY,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   November 29, 2016

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

                             __________


     Andre Kirby, 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.

      Petitioner was charged in a misbehavior report with
smuggling and possessing drugs after a search of his cell
uncovered a small bundle of a green leafy substance and a balloon
containing a green leafy substance wrapped in cellophane and
hidden inside a sock in petitioner's locker, which later tested
positive for marihuana. Following a tier III disciplinary
hearing, petitioner was found guilty of both charges and that
determination was affirmed upon administrative appeal. This CPLR
article 78 proceeding ensued.
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      Initially, respondent concedes, and we agree, that the
charge of smuggling is not supported by substantial evidence.
Accordingly, we annul that portion of the determination. Given
that no loss of good time was imposed and petitioner has already
served the penalty, the matter need not be remitted for a
reassessment of the penalty (see Matter of McBride v Annucci, 142
AD3d 1218, 1218-1219 [2016]). As to the remaining charge of drug
possession, the misbehavior report, related documentary evidence,
including the positive drug test results, hearing testimony and
confidential information, as well as the inferences to be drawn
therefrom, provide substantial evidence to support the
determination of guilt (see Matter of Kaid v Prack, 140 AD3d
1511, 1511 [2016]; Matter of Miller v Annucci, 131 AD3d 1304,
1305 [2015]). Petitioner's assertion that the marihuana was
planted by a correction officer presented a credibility issue,
which the Hearing Officer resolved against him (see Matter of
Giano v Prack, 138 AD3d 1285, 1285-1286 [2016], lv denied 27 NY3d
912 [2016]; Matter of Williams v Annucci, 120 AD3d 1479, 1480
[2014], lv denied 24 NY3d 911 [2014]).

      Further, we are unpersuaded by petitioner's contention that
he was improperly excluded from being present during the entire
search of his cell. "Department of Corrections and Community
Supervision Directive No. 4910 (V) (c) (1) allows an inmate to
observe a cell search when the inmate is removed from the cell
for the search, unless a determination is rendered that such
presence constitutes a safety or security risk" (Matter of
Johnson v Fischer, 109 AD3d 1070, 1071 [2013]). The record
establishes that petitioner was initially removed from his cell
based upon confidential information that he would pose a security
risk. Once it was determined that petitioner would not pose a
safety or security risk, he was permitted – shortly after the
search began and prior to the discovery of the marihuana – to
return to his cell to observe the search (see e.g. Matter of
Carelock v Annucci, 138 AD3d 1336, 1336 [2016]; Matter of De
Freitas v Goord, 290 AD2d 626, 627 [2002]; Matter of Mitchell v
Goord, 266 AD2d 614, 615 [1999]; compare Matter of Mingo v
Chappius, 106 AD3d 1160, 1160-1161 [2013]; Matter of McKethan v
Selsky, 297 AD2d 840, 841 [2002]). Under these circumstances, we
do not find that petitioner was improperly denied the right to
observe the search of his cell.
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     Garry, J.P., Lynch, Rose, Clark and Mulvey, JJ., concur.



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
smuggling; petition granted to that extent and respondent is
directed to expunge all references to this charge from
petitioner's institutional record; and, as so modified,
confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
