                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 6, 2015                    520096
________________________________

In the Matter of ALBERT
   HARRIOTT,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
   et al.,
                    Respondents.
________________________________


Calendar Date:   June 8, 2015

Before:   Peters, P.J., McCarthy, Lynch and Devine, JJ.

                             __________


     Albert Harriott, Elmira, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondents.

                             __________


      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 Commissioner of Corrections
and Community Supervision which found petitioner guilty of
violating a prison disciplinary rule.

      After a sample of his urine twice tested positive for the
presence of cannabinoids, petitioner was charged in a misbehavior
report with drug use. He was found guilty of the charge
following a tier III disciplinary hearing, and the determination
was affirmed on administrative appeal. Petitioner thereafter
commenced this CPLR article 78 proceeding.
                              -2-                  520096

      We confirm. The misbehavior report, hearing testimony of
its author and positive urinalysis test results provide
substantial evidence to support the determination of guilt (see
Matter of Epps v Prack, 127 AD3d 1477, 1477 [2015]; Matter of
Bussey v Commissioner of Corr. & Community Supervision, 120 AD3d
1471, 1472 [2014]). Petitioner's claim that the report was
written in retaliation for prior grievances and lawsuits that he
had filed presented a credibility issue for the Hearing Officer
to resolve (see Matter of Donah v Prack, 127 AD3d 1538, 1538
[2015]; Matter of Guillory v Annucci, 125 AD3d 1024, 1024-1025
[2015], lv denied 25 NY3d 905 [2015]).

      Finally, petitioner challenges the denial of a request for
certain documents that he made pursuant to the Freedom of
Information Law (see Public Officers Law art 6). Inasmuch as
there is no indication in the record that petitioner has
exhausted his administration remedies with respect thereto, our
review of the issue is precluded (see Matter of White v State of
New York, 117 AD3d 1250, 1250-1251 [2014]). Petitioner's
remaining claims have been reviewed and found to be lacking in
merit.

     Peters, P.J., McCarthy, Lynch and Devine, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
