                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 15, 2016                   522830
________________________________

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


Calendar Date:   October 25, 2016

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

                             __________


     Benjamin Thompson, Auburn, 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 a prison disciplinary rule.

      A metal razor with a black electrical tape handle and
sheath were found in petitioner's cell during a random search.
As a result, petitioner was charged in a misbehavior report with
possession of a weapon. Following a tier III disciplinary
hearing, petitioner was found guilty of that charge, and that
determination was upheld upon administrative review. This CPLR
article 78 proceeding ensued.
                              -2-                522830

      We confirm. The misbehavior report, unusual incident
report and supporting documentation, as well as the hearing
testimony, provide substantial evidence to support the
determination of guilt (see Matter of Lacey v Annucci, 138 AD3d
1329, 1330 [2016]; Matter of Burgos v Prack, 129 AD3d 1434, 1434
[2015]; Matter of Diaz v Prack, 127 AD3d 1489, 1490 [2015]).
Contrary to petitioner's claim, the hearing testimony does not
establish that he was set up, and, moreover, such claim presented
a credibility issue for the Hearing Officer to resolve (see
Matter of Baysden v Annucci, 140 AD3d 1519, 1519 [2016]; Matter
of Lacey v Annucci, 138 AD3d at 1330). To the extent that
petitioner contends that the time of the incident noted in the
misbehavior report was slightly different from the time of the
incident indicated in the contraband receipt, the record
establishes that the Hearing Officer examined these documents and
took them into consideration. The misbehavior report contained
sufficient detail to provide petitioner with notice of the charge
against him, and, in any event, the minor time discrepancy
amounts to no more than a "harmless technical defect" (Matter of
Eure v Goord, 271 AD2d 786, 787 [2005]; see Matter of Vines v
Goord, 19 AD3d 951, 952 [2005]). Furthermore, petitioner
expressly waived his right to call the author of the misbehavior
report or any other witness at the hearing to explain the
discrepancy (see Matter of Jones v Fischer, 101 AD3d 1197, 1198
[2012]; Matter of Hernandez v Selsky, 62 AD3d 1177, 1178 [2009]).
We have reviewed petitioner's remaining contentions and find them
to be without merit.

      Garry, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.,
concur.
                              -3-                  522830

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
