                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 28, 2016                     521797
________________________________

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


Calendar Date:   June 6, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Lynch and Mulvey, JJ.

                             __________


     Miguel Medina, Auburn, 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 certain prison disciplinary rules.

      Petitioner was charged in two misbehavior reports with
various disciplinary rule violations arising from two incidents
that occurred on the same date. The correction officer who
prepared the first report related that petitioner approached him
at his desk and was agitated because the officer had ordered him
to get up and make his bed. According to the officer, he
directed petitioner to return to his room, at which time
petitioner lunged at him with a clenched fist. As a result, the
officer charged him in a misbehavior report with attempting to
assault staff, engaging in violent conduct and refusing a direct
                              -2-                521797

order.

      The correction officer who prepared the second misbehavior
report related that, while he was beginning to conduct a strip
frisk of petitioner, he ordered petitioner to sweep his mouth and
that petitioner lunged toward the officer's throat with both
hands. That officer charged him in the second misbehavior report
with attempting to assault staff, engaging in violent conduct and
violating frisk procedures. Following a combined tier III
disciplinary hearing, petitioner was found guilty of the charges
contained in both reports and the determination was affirmed on
administrative appeal. This CPLR article 78 proceeding ensued.

      We confirm. The misbehavior reports, together with the
testimony of the correction officers who prepared them, provide
substantial evidence supporting the determination of guilt (see
Matter of Byrd v Fischer, 117 AD3d 1263, 1263 [2014]; Matter of
Davis v Prack, 90 AD3d 1447, 1448 [2011]). Petitioner's contrary
testimony and his assertion that it was he who was assaulted by
correction officers presented a credibility issue for the Hearing
Officer to resolve (see Matter of Quezada v Fischer, 113 AD3d
1004, 1004 [2014]; Matter of Suero v Fischer, 95 AD3d 1509, 1509-
1510 [2012]). Furthermore, upon reviewing the record, we find
nothing to indicate that the Hearing Officer was biased or that
the determination flowed from any alleged bias (see Matter of
Genyard v Annucci, 136 AD3d 1091, 1092 [2016]; Matter of Sanders
v Annucci, 128 AD3d 1156, 1157 [2015], appeal dismissed 26 NY3d
964 [2015]). Petitioner's remaining contentions have not been
preserved for our review due to his failure to raise them at the
hearing (see Matter of Rodriquez v Annucci, 136 AD3d 1083, 1084
[2016]).

      Peters, P.J., McCarthy, Egan Jr., Lynch and Mulvey, JJ.,
concur.
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      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
