                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 15, 2016                   522139
________________________________

In the Matter of WONDER
   WILLIAMS,
                    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, Mulvey and Aarons, JJ.

                             __________


     Wonder Williams, Romulus, 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.

      After a search of petitioner's cell in the special housing
unit (hereinafter SHU) revealed a toothbrush with a handle that
had been sharpened to a point, petitioner was charged in a
misbehavior report with possession of a weapon. Following a tier
III hearing, he was found guilty as charged and a penalty was
imposed, and the determination was upheld on administrative
appeal. This CPLR article 78 proceeding ensued.
                              -2-                522139

      Substantial evidence was adduced supporting the
determination, including the misbehavior report and the testimony
of its author, who conducted the search, as well as the testimony
of other correctional officers, certain documentary evidence and
the weapon itself, which the Hearing Officer inspected (see
Matter of Shufelt v Annucci, 138 AD3d 1336, 1337 [2016]; Matter
of Giano v Prack, 138 AD3d 1285, 1285 [2016], lv denied ___ NY3d
___ [Aug. 30, 2016]). Petitioner's claim that he was issued the
toothbrush in its sharpened condition in the SHU created a
credibility question for the Hearing Officer (see Matter of Lacey
v Annucci, 138 AD3d 1329, 1330 [2016]), and several officers
testified that, while the handles of toothbrushes were sometimes
cut short in the SHU, they were shortened with a straight-cut
edge and inmates were never given toothbrushes with a sharpened
or pointed handle. We also reject petitioner's claim that he was
denied the right to call witnesses, as the Hearing Officer made
repeated and reasonable efforts to identify and locate the
unnamed SHU porter who had cut the toothbrushes months earlier
(see Matter of Stephens v Lee, 115 AD3d 964, 964 [2014]).
Further, the Hearing Officer correctly determined that testimony
of the reviewing officer who classified this as a tier III
violation, who had no personal knowledge regarding this matter,
and the documentation of his reasons for the classification were
not relevant to the determination of whether petitioner possessed
a weapon (see 7 NYCRR 251-2.2 [b]; Matter of Pettus v Selsky, 28
AD3d 1043, 1043-1044 [2006]). Further, we discern no basis upon
which to disturb the reviewing officer's discretionary tier
classification (see 7 NYCRR 251-2.2 [b]; Matter of Gathers v
Goord, 31 AD3d 1085, 1085-1086 [2006]; Matter of Pettus v Selsky,
28 AD3d at 1043-1044). We have reviewed petitioner's remaining
contentions and, to the extent that they are preserved for our
review, we find that they are without merit.

      McCarthy, J.P., Egan Jr., Lynch, Mulvey and Aarons, 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
