                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 15, 2016                   521329
________________________________

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


Calendar Date:   August 8, 2016

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

                             __________


     Albert Sherman, Dannemora, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Treasure 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 certain prison disciplinary rules.

      Petitioner was charged in a misbehavior report with assault
on staff, violent conduct, creating a disturbance, refusing a
direct order, violating facility movement regulations and
violating facility frisk procedures. According to the report,
when a correction officer ordered petitioner to pack his property
for a transfer, he refused and became disruptive. The officer
escorted him to a foyer where petitioner refused to allow the
officer to frisk him, he grabbed the officer and they struggled
until help arrived. An initial tier III hearing finding him
                              -2-                521329

guilty of all charges was reversed on administrative appeal.
Following a rehearing, petitioner was again found guilty of all
charges and the determination was affirmed on administrative
appeal. This CPLR article 78 proceeding ensued.

      We confirm. The testimony of the correction officer
involved in the incident, together with the misbehavior report,
unusual incident report and use of force report, provide
substantial evidence supporting the determination (see Matter of
Davis v Annucci, 123 AD3d 1279, 1279 [2014]; Matter of Reynoso v
Fischer, 73 AD3d 1315, 1315-1316 [2010]). Petitioner's differing
version of events and his assertion that the officer's testimony
was inconsistent created credibility issues for the Hearing
Officer to resolve (see Matter of Wilson v Annucci, 129 AD3d
1422, 1422 [2015]; Matter of Williams v Goord, 36 AD3d 1033, 1033
[2007]). With respect to petitioner's request for a copy of the
tape recording of the first hearing, the Hearing Officer inquired
and found that such tape no longer existed (see Matter of Malik v
Bezio, 76 AD3d 1128, 1128 [2010]), and petitioner was not
deprived of a fair hearing by the absence of a copy of such tape
(see Matter of Madden v Griffin, 109 AD3d 1060, 1061-1062 [2013],
lv denied 22 NY3d 860 [2014]).

      Petitioner was not improperly denied the right to call
witnesses. He requested that two former employees of the
Department of Corrections and Community Supervision be produced
as witnesses. The Hearing Officer attempted to locate such
individuals, including making calls that went unreturned to phone
numbers that they had left with the Department when retiring. By
the time of the hearing, they were civilians no longer under the
Department's control and the Hearing Officer made reasonable and
substantial efforts to contact them (see Matter of Davila v
Prack, 113 AD3d 978, 979 [2014], lv denied 23 NY3d 904 [2014];
Matter of Vizcaino v Selsky, 26 AD3d 574, 575 [2006], lv denied 7
NY3d 708 [2006]). The inmate witnesses that petitioner requested
refused to testify, and their reasons were set forth on the
record (see Matter of Williams v Goord, 36 AD3d at 1033; Matter
of Hill v Selsky, 19 AD3d 64, 66-67 [2005]; Matter of Moore v
Senkowski, 13 AD3d 683, 684 [2004]).
                              -3-                  521329

      Contrary to petitioner's assertion, the record reveals that
the hearing was "conducted in a fair and impartial manner, and
there is nothing to suggest that the Hearing Officer was biased
or that the determination flowed from any alleged bias" (Matter
of Allen v Venettozzi, 139 AD3d 1208, 1209 [2016]; see Matter of
Thousand v Prack, 139 AD3d 1212, 1213 [2016]; Matter of Hawkins v
Fischer, 72 AD3d 1378, 1379 [2010]). Petitioner's remaining
arguments, to the extent preserved, have been considered and
found to lack merit.

      McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.,
concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
