                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 2, 2015                      520034
________________________________

In the Matter of DEREK SIMMONS,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
THOMAS LaVALLEY, as
   Superintendent of Clinton
   Correctional Facility,
                    Respondent.
________________________________


Calendar Date:   May 5, 2015

Before:   Lahtinen, J.P., Rose, Lynch and Clark, JJ.

                               __________


     Derek Simmons, Dannemora, 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 Clinton County)
to review a determination of respondent which found petitioner
guilty of violating certain prison disciplinary rules.

      Petitioner was charged in a misbehavior report with
creating a disturbance, interfering with an employee, harassment,
refusing a direct order and making threats. According to the
misbehavior report, petitioner did not comply with several
directives from a correction officer to hang up the telephone,
requiring that officer to approach petitioner. Thereafter,
petitioner allegedly made various inappropriate and violent
remarks to the correction officer. Following a tier II
disciplinary hearing, petitioner was found guilty of all charges
and that determination was affirmed upon administrative appeal.
                              -2-                520034

This CPLR article 78 proceeding ensued.

      Initially, we agree with petitioner that the charge of
creating a disturbance was not supported by the misbehavior
report. Inasmuch as the penalty has already been served and it
does not appear that any loss of good time was imposed, there is
no need to remit the matter for a redetermination of the penalty
imposed (see Matter of Hood v Fischer, 100 AD3d 1122, 1123
[2012]). We reach a different conclusion with regard to the
remaining charges. The detailed misbehavior report, authored by
the correction officer who was involved in the incident, is
sufficient, by itself, to provide substantial evidence to support
the determination of guilt with respect to those charges (see
Matter of Green v Bradt, 91 AD3d 1235, 1237 [2012], lv denied 19
NY3d 802 [2012]; Matter of Encarnacion v Bellnier, 89 AD3d 1301,
1302 [2011]). Any conflicting testimony from petitioner or his
witnesses presented a credibility issue for the Hearing Officer
to resolve (see Matter of Grant v Rock, 122 AD3d 1225, 1226
[2014]).

      To the extent that petitioner asserts that he was
improperly denied the right to present witness testimony, we find
that the Hearing Officer appropriately restricted any testimony
to information relevant to the misbehavior report. We have
reviewed petitioner's remaining contentions and find them to be
without merit.

     Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur.
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      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
creating a disturbance; petition granted to that extent and the
Commissioner of Corrections and Community Supervision is directed
to expunge all references to this charge from petitioner's
institutional record; and, as so modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
