                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 11, 2014                   519197
________________________________

In the Matter of EON SHEPHERD,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

COMMISSIONER OF CORRECTIONS
   AND COMMUNITY SUPERVISION,
                    Respondent.
________________________________


Calendar Date:   October 21, 2014

Before:   Peters, P.J., Lahtinen, McCarthy, Garry and Clark, JJ.

                             __________


     Eon Shephard, Wallkill, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff 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 two determinations of the Superintendent of Shawangunk
Correctional Facility which found petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner commenced this CPLR article 78 proceeding to
challenge two tier II prison disciplinary determinations that
were rendered, respectively, on November 4, 2013 and December 6,
2013. Respondent properly concedes that the November 4, 2013
determination must be annulled, as "[t]his record does not
contain an adequate basis to conclude that petitioner refused to
attend the hearing or was informed of the consequences of his
failure to appear" (Matter of Ifill v Fischer, 79 AD3d 1322, 1323
[2010]; see 7 NYCRR 253.6 [b]).
                              -2-                519197

      Turning to the December 6, 2013 determination, the
misbehavior report and hearing testimony provide substantial
evidence to support the finding that petitioner violated a prison
disciplinary rule by making threats against a correction officer
(see Matter of Clark v Fischer, 120 AD3d 1468, 1468 [2014];
Matter of Guillory v Fischer, 111 AD3d 1005, 1005 [2013]).
Petitioner's contention that the misbehavior report was issued in
retaliation for a grievance he had filed created a credibility
issue for the Hearing Officer to resolve (see Matter of Guillory
v Fischer, 111 AD3d at 1005). While the Hearing Officer had
limited success in complying with petitioner's request that all
of the inmates who had witnessed the incident be identified and
called to testify, his efforts were sufficient and resulted in
several inmates testifying at the hearing (see Matter of Aguirre
v Fischer, 111 AD3d 1219, 1220 [2013]). Petitioner thereafter
left the hearing by choice and, contrary to his contention, he
was not denied the right to be present at the hearing given that
he left despite having been informed that the hearing would be
concluded in his absence (see Matter of Bermudez v Fischer, 107
AD3d 1269, 1270 [2013]; Matter of Haden v Prack, 62 AD3d 1133,
1134 [2009]). To the extent that petitioner's remaining
contentions are properly before us, they have been examined and
found to lack merit.

      Peters, P.J., Lahtinen, McCarthy, Garry and Clark, JJ.,
concur.
                              -3-                  519197

      ADJUDGED that the determination dated November 4, 2013 is
annulled, without costs, petition granted to that extent and the
Superintendent of Shawangunk Correctional Facility is directed to
expunge all references thereto from petitioner's institutional
record.

      ADJUDGED that the determination dated December 6, 2013 is
confirmed, without costs, and petition dismissed to that extent.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
