                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 23, 2016                     522112
________________________________

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


Calendar Date:   May 3, 2016

Before:   Peters, P.J., Lahtinen, Rose, Lynch and Mulvey, JJ.

                               __________


     Jermaine Fann, Auburn, 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 the Superintendent of Auburn
Correctional Facility finding petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner was charged in a misbehavior report with
refusing a direct order and failing to comply with facility count
procedures. The charges stem from petitioner remaining in his
bed without responding to several orders to report for the
facility's morning count. Following a tier II disciplinary
hearing, petitioner was found guilty of both charges. That
determination was affirmed upon administrative appeal. This CPLR
article 78 proceeding ensued.
                              -2-                522112

      We confirm. Initially, petitioner confines his challenge
to procedural matters, as he has withdrawn his claim that the
misbehavior report, standing alone, did not constitute
substantial evidence of the determination of guilt. He asserts
that he was improperly denied the right to call the
Superintendent of the correctional facility as a witness at the
hearing to prove that the misbehavior report was made in
retaliation for filing a prior grievance against the correction
officer who authored the misbehavior report. However, as the
Superintendent was not present at the time of the incident that
formed the basis of the misbehavior report and was not shown to
have any relevant personal knowledge, his testimony was properly
excluded by the Hearing Officer (see Matter of Blackwell v
Fischer, 106 AD3d 1346, 1346 [2013]; Matter of Walker v Fischer,
71 AD3d 1309, 1039 [2010], lv dismissed 14 NY3d 912 [2010]).
Furthermore, the Hearing Officer afforded petitioner the
opportunity to present his exculpatory retaliation defense by
permitting him to testify at the hearing and to submit
documentary evidence including a copy of the grievance, which was
read into the record (see Matter of Wilkerson v Annucci, 137 AD3d
1444, 1445 [2016]; Matter of Rafi v Venettozzi, 120 AD3d 1481,
1482 [2014]; Matter of Rosales v Pratt, 98 AD3d 764, 765 [2012],
lv denied 19 NY3d 816 [2012]). Finally, the record demonstrates
that the finding of guilt was premised on the evidence presented
at the hearing, rather than on alleged hearing officer bias or on
the Hearing Officer's brief off-the-record discussion with the
Superintendent to determine his availability (see Matter of
Collucci v Goord, 305 AD2d 825, 825 [2003]; Matter of Steward v
Selsky, 266 AD2d 605, 606 [1999]). Petitioner's remaining
contentions have been examined and found to be without merit.

      Peters, P.J., Lahtinen, Rose, Lynch and Mulvey, JJ.,
concur.
                              -3-                  522112

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
