                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 18, 2014                   518205
________________________________

In the Matter of MICHAEL LEE,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

DEPARTMENT OF CORRECTIONAL
   SERVICES et al.,
                    Respondents.
________________________________


Calendar Date:   August 4, 2014

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

                             __________


     Michael Lee, Malone, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff 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 the Commissioner of Corrections and
Community Supervision which found petitioner guilty of violating
certain prison disciplinary rules.

      As petitioner was returning to his cell from the academic
school area of the prison, he was found to be carrying a
handwritten description of how to build an explosive device. He
was accordingly charged in a misbehavior report with possessing
both contraband and material concerning the construction or use
of a explosive device, as well as smuggling. After a subsequent
search of his cell disclosed additional documents pertaining to
bombs and bomb making, as well as an item that resembled an
explosive device, petitioner was charged in a second misbehavior
report with possessing an apparently dangerous instrument,
                              -2-                  518205

contraband and material concerning the construction or use of an
explosive device. Following a tier III disciplinary hearing on
both reports, petitioner was found guilty as charged. The
determination was affirmed in relevant part upon administrative
appeal, prompting this CPLR article 78 proceeding.

      Contrary to petitioner's contention, the documents that
formed the basis for several of the charges against him were
included in the record before the Hearing Officer. Those
documents and other confidential correspondence, as well as the
detailed misbehavior reports and hearing testimony, provide
substantial evidence to support the determination of guilt
(see Matter of Towles v Selsky, 12 AD3d 737, 738 [2004], lv
denied 4 NY3d 706 [2005]; Matter of Knickerbocker v Goord, 276
AD2d 1008, 1009 [2000]). We are unpersuaded by petitioner's
additional contention that, in imposing a penalty, the Hearing
Officer improperly considered the heightened impact that the
discovery of bomb-related materials could have upon the
atmosphere in the facility given that the Boston Marathon bombing
had recently occurred (see 7 NYCRR 250.2 [b] [3]; see e.g.
Arteaga v State of New York, 72 NY2d 212, 217-218 [1988]).

      Lahtinen, J.P., Stein, Rose, Egan Jr. and Devine, JJ.,
concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
