                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 26, 2017                   522807
________________________________

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


Calendar Date:   November 29, 2016

Before:   Egan Jr., J.P., Lynch, Rose, Clark and Mulvey, JJ.

                             __________


     Timothy J. Wendell, Collins, 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.

      During the course of an investigation, correction officials
learned that petitioner was involved in a plan with another
inmate to have the inmate's fiancée send a package containing
synthetic marihuana to petitioner at the correctional facility.
The fiancée subsequently gave a statement to correction officials
admitting that she had sent a package to petitioner that
contained synthetic marihuana. As a result, petitioner was
charged in a misbehavior report with conspiring to bring drugs
into the facility and smuggling. He was found guilty of the
                              -2-                  522807

charges following a tier III disciplinary hearing. On
administrative appeal, the former charge was dismissed, but that
part of the determination finding petitioner guilty of smuggling
was upheld with a modified penalty. This CPLR article 78
proceeding ensued.

      We confirm. The misbehavior report, testimony of the
investigator who authored it and confidential statement given by
the fiancée provide substantial evidence supporting the
determination of guilt (see Matter of Safford v Annucci, 144 AD3d
1271, 1272 [2016]; Matter of Hicks v Goord, 35 AD3d 1000, 1000-
1001 [2006], lv denied 8 NY3d 806 [2007]). The fact that
petitioner was not actually found to be in possession of
synthetic marihuana does not negate the determination (see e.g.
Matter of Zimmerman v Annucci, 139 AD3d 1205, 1206 [2016]; Matter
of Booker v Fischer, 102 AD3d 1045, 1046 [2013]). Furthermore,
although petitioner contends that he was improperly denied a copy
of the confidential statement, the Hearing Officer read the
statement into the record at the hearing and petitioner was
sufficiently apprised of its contents. We have reviewed
petitioner's remaining arguments and find that they are either
unpreserved for our review or are lacking in merit.

     Egan Jr., J.P., Lynch, Rose, Clark and Mulvey, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
