                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 9, 2017                   523186
________________________________

In the Matter of BERNARD J.
   LEGEROS,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   January 18, 2017

Before:   McCarthy, J.P., Garry, Lynch, Devine and Mulvey, JJ.

                             __________


      Law Offices of Orlee Goldfeld, New York City (Orlee
Goldfeld of counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger of counsel), for respondent.

                             __________


Lynch, J.

      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.

      During the course of an investigation in which a mail watch
was conducted to monitor petitioner's mail, it was discovered
that petitioner had written a letter to another inmate that
contained threatening language against two correction officers.
The investigation further revealed that petitioner called his
father the day after he wrote the letter, during which they
                              -2-                523186

discussed the idea of sending investigators to the residence of
one officer. A subsequent search of petitioner's property
disclosed a calendar book containing credit card information
belonging to another person. As a result, petitioner was charged
in a misbehavior report with making threats, violating facility
correspondence procedures, possessing credit card information and
engaging in violent conduct. Following a tier III disciplinary
hearing, petitioner was found guilty of all of the charges except
for engaging in violent conduct. The determination was upheld
upon administrative appeal, and this CPLR article 78 proceeding
ensued.

      We confirm. The misbehavior report and related
documentation, as well as the testimony of the correction officer
who authored the report and petitioner's own admissions, provide
substantial evidence supporting the determination of guilt (see
Matter of Scott v Fischer, 92 AD3d 1000, 1000 [2012]; Matter of
Cole v New York State Dept. of Correctional Servs., 87 AD3d 1243,
1243 [2011]). Although the hearing transcript discloses numerous
inaudible portions, the gaps are not so significant as to
preclude meaningful review of the arguments advanced by
petitioner (see Matter of Torres v New York State Dept. of Corr.
& Community Supervision, 130 AD3d 1122, 1122-1123 [2015]; compare
Matter of Tolliver v Fischer, 125 AD3d 1023, 1023-1024 [2015], lv
denied 25 NY3d 908 [2015]). Further, petitioner's exculpatory
explanation for the contents of the letter and the telephone
call, including that he never intended or had the ability to
threaten anyone, presented a credibility issue for the Hearing
Officer to resolve (see Matter of Cole v New York State Dept. of
Correctional Servs., 87 AD3d at 1243; Matter of Alston v Goord,
25 AD3d 852, 852 [2006]).

      Turning to petitioner's procedural contentions, we reject
his argument that the misbehavior report was defective because it
contains inaccurate information regarding the location of the
incidents. While the misbehavior report appears to contain some
inaccuracies in this regard, the report as a whole provided
adequate notice of the charges, as it set forth the date and time
of the incidents, the specific rule violations and enough details
of the misconduct to allow petitioner to prepare a meaningful
defense (see Matter of Chandler v Annucci, 135 AD3d 1258, 1259
                              -3-                523186

[2016]; Matter of Toro v Fischer, 104 AD3d 1036, 1037 [2013];
Matter of Ponder v Fischer, 54 AD3d 1094, 1095 [2008]). We also
reject petitioner's contention that the misbehavior report was
not written in a timely manner, as it was prepared at the
conclusion of an ongoing investigation into petitioner's conduct
and, thus, was generated "as soon as practicable" in accordance
with the requirements of 7 NYCRR 251-3.1 (a) (see Matter of Scott
v Fischer, 92 AD3d at 1001; Matter of Correnti v Fischer, 83 AD3d
1354, 1354 [2011]). In addition, the record is devoid of any
evidence that the Hearing Officer was biased or that the
determination flowed from any alleged bias (see Matter of Lopez v
Department of Corr. & Community Supervision, 142 AD3d 1238, 1240
[2016]; Matter of Smith v Venettozzi, 142 AD3d 1201, 1202
[2016]). Furthermore, in light of the violent nature of the
threats made, we do not find the penalty, which included 180 days
in the special housing unit, so shocking to one's sense of
fairness as to be excessive (see Matter of Mullins v Venettozzi,
141 AD3d 1063, 1064 [2016]; Matter of Lamere v Fischer, 87 AD3d
768, 768 [2011]). Lastly, petitioner failed to preserve for our
review his contention that the mail watch was not properly
authorized, as he never raised it at the disciplinary hearing or
in his administrative appeal (see Matter of Greene v Fischer, 107
AD3d 1271, 1271 [2013]; Matter of Devaughn v Bezio, 75 AD3d 673,
674 [2010]; Matter of Constantino v Goord, 33 AD3d 1093, 1094
[2006]). We have considered petitioner's remaining contentions
and find that they are either unpreserved for our review or
lacking in merit.

     McCarthy, J.P., Garry, Devine and Mulvey, JJ., concur.
                              -4-                  523186

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
