                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 31, 2014                     518052
________________________________

In the Matter of ADRIAN
   BELLINGER,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
D. VENETTOZZI, as Acting
   Director of Special
   Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   June 9, 2014

Before:   Lahtinen, J.P., Stein, McCarthy, Rose and Egan Jr., JJ.

                             __________


     Adrian Bellinger, Albion, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff 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 Commissioner of Corrections and
Community Supervision which found petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner, a prison inmate, was charged in a misbehavior
report with refusing a direct order, possession of drugs and
possession of gang materials. The charges stemmed from an
incident wherein a correction officer ordered petitioner to empty
his pockets. Petitioner responded by throwing three "joint-type"
cigarettes on the ground; he did not, however, produce a note
secreted in one of his pockets. Following a tier III
                              -2-                518052

disciplinary hearing, the Hearing Officer found petitioner guilty
as charged and assessed a penalty that included a recommended
loss of three months of good time. All of the charges except for
refusing a direct order were dismissed upon administrative
appeal, but the loss of good time was not modified. This CPLR
article 78 proceeding ensued.

      We confirm. Substantial evidence, in the form of the
misbehavior report and the testimony of the correction officer
who ordered petitioner to empty his pockets and later found the
note during a pat frisk, supports the determination that
petitioner refused a direct order (see Matter of Matthews v
Goord, 47 AD3d 1043, 1043 [2008]; Matter of Archie v Great Meadow
Correctional Facility, 243 AD2d 808, 808 [1997]). Contrary to
petitioner's contention, the Hearing Officer was not required to
recuse herself because she was on duty at the time of the
incident and was aware that it had occurred (see Matter of Turner
v Fischer, 100 AD3d 1310, 1310-1311 [2012]; Matter of Vega v New
York State Dept. of Correctional Servs., 92 AD3d 991, 992 [2012];
7 NYCRR 254.1). As a final matter, we cannot say that the
recommended loss of good time is shocking to one's sense of
fairness, notwithstanding the fact that it remained unchanged
despite all but one of the charges against petitioner having been
dismissed (see Matter of Tafari v Prack, 89 AD3d 1311, 1312
[2011], lv denied 18 NY3d 808 [2012]).

      Petitioner's remaining contentions have been considered and
are unavailing.

      Lahtinen, J.P., Stein, McCarthy, Rose and Egan Jr., 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
