                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 19, 2015                    519357
________________________________

In the Matter of RUBEN MENDEZ,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   January 20, 2015

Before:   Lahtinen, J.P., McCarthy, Lynch and Devine, JJ.

                             __________


     Ruben Mendez, Auburn, 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 was charged in a misbehavior report with
demonstration and violent conduct after an investigation yielded
confidential information alleging that petitioner was one of the
organizers of a three-day silent demonstration in the mess hall
during meals, which protest was to escalate to work stoppages and
violence against staff. Following a tier III disciplinary
hearing, petitioner was found guilty as charged. The
determination was affirmed upon administrative appeal, prompting
petitioner to commence this CPLR article 78 proceeding.
                              -2-                  519357

      We confirm. The misbehavior report, testimony at the
hearing and the confidential information that was independently
assessed by the Hearing Officer provide substantial evidence to
support the determination of guilt (see Matter of Rosa v Fischer,
112 AD3d 1009, 1010 [2013], lv denied 22 NY3d 864 [2014]; Matter
of Ferguson v Goord, 13 AD3d 949, 949 [2004]). Although
petitioner relies on the fact that during the demonstration he
was confined to his cell for meals due to a medical condition,
such evidence is not dispositive as to whether he was involved in
organizing the demonstration and, in any event, such testimony
presented a credibility issue for the Hearing Officer to resolve
(see Matter of Rosa v Fischer, 112 AD3d at 1010).

      Petitioner's contention that he was improperly denied an
unusual incident report is without merit, as the record
establishes that no such document existed (see Matter of Morgan v
Goord, 10 AD3d 792, 793 [2004]). We also are unpersuaded by
petitioner's assertion that he required the assistance of a
Spanish interpreter. The record demonstrates, and testimony
regarding his educational records confirms, that petitioner is
sufficiently proficient in English to enable his meaningful
participation in the hearing (see Matter of Encarnacion v Goord,
19 AD3d 906, 907 [2005]). Petitioner's remaining contention
regarding the adequacy of his employee assistance is unpreserved
for our review given his failure to raise the issue at the
disciplinary hearing (see Matter of Robinson v Prack, 119 AD3d
1309, 1309 [2014]).

     Lahtinen, J.P., McCarthy, Lynch and Devine, JJ., concur.


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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
