                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 14, 2016                    521516
________________________________

In the Matter of ERIC MOORE,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

DONALD VENETTOZZI, as Acting
   Director of Special Housing
   and Inmate Disciplinary
   Programs,
                    Respondent.
________________________________


Calendar Date:   February 23, 2016

Before:   Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


     Eric Moore, Fallsburg, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Treasure 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 the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      An investigation into a drug-trafficking operation revealed
that petitioner, a prison inmate, had conspired to bring
marihuana, synthetic marihuana and suboxone into the correctional
facility and had used threats of violence to incentivize other
inmates to distribute, and collect payment for, those drugs. As
a consequence, petitioner was charged in a misbehavior report
with making threats, soliciting, violent conduct, possessing
intoxicants and drug possession. Following a tier III
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disciplinary hearing, petitioner was found guilty of all charges.
On administrative appeal, the finding of guilt was affirmed.
Petitioner thereafter commenced this CPLR article 78 proceeding.

      Preliminarily, "the minor omissions contained in the
hearing transcript have not rendered it so incomplete as to
preclude meaningful review" (Matter of Robertson v Fischer, 70
AD3d 1081, 1082 [2010]; see Matter of Johnson v Rock, 64 AD3d
1096, 1096 [2009], lv denied 13 NY3d 713 [2009]). Turning to the
merits, the misbehavior report and hearing testimony, as well as
the confidential testimony considered, provide substantial
evidence to support the determination of guilt (see Matter of
Welch v Fischer, 121 AD3d 1139, 1140 [2014]; Matter of Carrero v
Fischer, 106 AD3d 1299, 1299 [2013]; Matter of Alvarado v
Commissioner of Special Hous. Unit, 93 AD3d 966, 967 [2012]).
Petitioner's conflicting testimony presented credibility issues
for the Hearing Officer to resolve (see Matter of Reese v
Fischer, 120 AD3d 1496, 1497 [2014]; Matter of Miller v New York
State Dept. of Correctional Servs., 295 AD2d 714, 714-715
[2002]).

      The fact that petitioner was never found to be in
possession of marihuana, synthetic marihuana or suboxone does not
negate his guilt, as a violation of the rules occurred when
petitioner conspired to bring these items into the facility (see
Matter of Welch v Fischer, 121 AD3d at 1140). Finally, given
that petitioner's misconduct was a continuing violation, it was
not improper for the correction officer to use the date that his
investigation was completed as the incident date on the
misbehavior report (see Matter of Blake v Goord, 35 AD3d 1016,
1017 [2006]; Matter of Kornegay v Goord, 21 AD3d 1236, 1236-1237
[2005]). Petitioner's remaining contentions, to the extent that
they are preserved for our review, have been examined and found
to be without merit.

     Lahtinen, J.P., Egan Jr., Devine and Clark, JJ., concur.
                              -3-                  521516

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
