                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 2, 2017                   523035
________________________________

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


Calendar Date:   November 29, 2016

Before:   Peters, P.J., McCarthy, Lynch, Clark and Mulvey, JJ.

                             __________


     Raymond Gaston, Wallkill, 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 Superintendent of Shawangunk
Correctional Facility finding petitioner guilty of violating a
prison disciplinary rule.

      Petitioner was charged in a misbehavior report with
possessing an altered item and damaging state property.
According to the misbehavior report, petitioner used rubber pads
that appeared to be cut from the interior of an athletic ball
while exercising in the recreation yard of the correctional
facility. Following a tier II disciplinary hearing, petitioner
was only found guilty of possessing an altered item. That
                              -2-                523035

determination was affirmed upon administrative appeal.
Petitioner then commenced this CPLR article 78 proceeding.

      We confirm. To the extent challenged by petitioner, the
misbehavior report, related documentation and testimony at the
hearing provide substantial evidence to support the determination
of guilt (see Matter of Garcia v Garner, 122 AD3d 988, 989
[2014]; Matter of Mitchell v Fischer, 81 AD3d 1013, 1014 [2011]).
We are unpersuaded by petitioner's contention that he was denied
the right to call two inmate witnesses. Each of these inmates
signed witness refusal forms, one indicating that he was not
present and the other that he did not know anything about the
event. Both inmates, however, added that they did not want to
testify over concerns of retaliation by the correction officer
who wrote the misbehavior report. After petitioner emphasized
each inmate's retaliation concern, the Hearing Officer
interviewed both witnesses and confirmed their statements. While
the Hearing Officer failed to inquire further as to the reason
for the retaliation concern, since neither inmate raised any
contention of actual coercion, we conclude that petitioner's
right to "call witnesses on his behalf" was not violated (7 NYCRR
254.5 [a]; see Wolff v McDonnell, 418 US 539, 566 [1974]; Matter
of Cortorreal v Annucci, 28 NY3d 54, 59-60 [2016]; Matter of
Taylor v Annucci, 140 AD3d 1433, 1434 [2016]; Matter of Rodriguez
v Annucci, 136 AD3d 1083, 1084 [2016]). Contrary to petitioner's
contention, the record establishes that his retaliation defense
was considered by the Hearing Officer. The fact that the Hearing
Officer resolved such credibility issue adversely to petitioner
is not indicative of bias (see Matter of Amaker v Bezio, 98 AD3d
1146, 1146 [2012]). We have reviewed petitioner's remaining
contentions and find them to be without merit.

      Peters, P.J., McCarthy, Lynch, Clark and Mulvey, JJ.,
concur.
                              -3-                  523035

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
