                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 21, 2016                     522143
________________________________

In the Matter of MELVIN
   JOHNSON,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   June 6, 2016

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

                             __________


     Melvin Johnson, Wende Road, 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.

      Petitioner was charged in a misbehavior report with using a
controlled substance after a sample of his urine twice tested
positive for the presence of buprenorphine. He was found guilty
of the charge following a tier III disciplinary hearing, and the
determination was later affirmed on administrative appeal. This
                                 -2-                  522143

CPLR article 78 proceeding ensued.1

      We confirm. Upon reviewing the record, we find no merit to
petitioner's claim that he was denied a fair hearing.
Significantly, there is no indication that the Hearing Officer
engaged in conduct suggestive of bias or that the determination
flowed from any alleged bias (see Matter of Williams v Prack, 130
AD3d 1123, 1124 [2015]; Matter of Paddyfote v Fischer, 118 AD3d
1240, 1241 [2014]). Furthermore, petitioner's challenge to the
tier II designation assigned to the matter has not been preserved
for our review due to his failure to raise it at the hearing (see
Matter of Joseph v Prack, 133 AD3d 1014, 1015 [2015]; Matter of
Baez v Bellnier, 131 AD3d 771 [2015]).

         Lahtinen, J.P., Garry, Rose, Lynch and Mulvey, JJ., concur.



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




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court


     1
        Although the proceeding was improperly transferred to
this Court as the verified petition does not raise the issue of
substantial evidence, we nevertheless retain jurisdiction in the
interest of judicial economy (see Matter of Toliver v New York
State Dept. of Corr. & Community Supervision, 127 AD3d 1536, 1537
n 1 [2015]).
