                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 10, 2016                    521365
________________________________

In the Matter of MICHAEL
   SPIRLES,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

LIEUTENANT J. LARAMAY, as
   Acting Captain 102,
                    Respondent.
________________________________


Calendar Date:   January 19, 2016

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

                             __________


     Michael Spirles, 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 the Superintendent of Five Points
Correctional Facility finding petitioner guilty of violating a
prison disciplinary rule.

      Petitioner was charged in a misbehavior report with
possession of contraband after a search of his cell uncovered
rosary beads with a metal cross wrapped in clothing and four
small pieces of magnet stuck to the wall anchor bolts above
petitioner's bunk. Following a tier II disciplinary hearing,
petitioner was found guilty as charged and that determination was
affirmed upon administrative appeal. This CPLR article 78
proceeding ensued.
                              -2-                  521365

      We confirm. Substantial evidence in the record, including
the misbehavior report, petitioner's property intake sheet and
testimony at the hearing, supports the determination that the
items discovered in petitioner's cell were contraband (see Matter
of Machicote v Bezio, 87 AD3d 763, 763 [2011]). Further, with
respect to the rosary beads, the record establishes that the
beads failed to comply with the Department of Corrections and
Community Supervision directive specifying the types of rosary
beads permitted within the facility (see Dept of Corr & Community
Supervision Directive No. 4202 [XIV] [B]).   Petitioner's
exculpatory explanation for the items being in his cell presented
a credibility issue for the Hearing Officer to resolve (see
Matter of Mercer v James, 98 AD3d 1174, 1175 [2012]; Matter of
Machicote v Bezio, 87 AD3d at 764). Petitioner's remaining
contentions, including that the Hearing Officer was biased, were
not raised at the hearing or on administrative appeal and,
therefore, are unpreserved for our review (see Matter of Peoples
v Selsky, 33 AD3d 1179, 1180 [2006]).

     Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
