                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 12, 2015                   520425
________________________________

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


Calendar Date:   September 22, 2015

Before:   McCarthy, J.P., Garry, Devine and Clark, JJ.

                             __________


     Robert A. Horton, Auburn, 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 St. Lawrence
County) to review a determination of respondent finding
petitioner guilty of violating certain prison disciplinary rules.

      During the course of an investigation, correction officials
conducted a search of petitioner's cell and found documents in
his large locker that appeared to be forged. One was a judicial
decision on petitioner's CPL article 440 motion that was
allegedly signed by a judge. The other was an order purportedly
signed by the same judge directing the superintendent of the
correctional facility to release petitioner from custody. Copies
of these documents were apparently sent to various entities,
including the Central Office of the Department of Corrections and
                              -2-                520425

Community Supervision. After correction officials confirmed that
the documentation was fraudulent, petitioner was charged in a
misbehavior report with forgery and possessing escape items. He
was found guilty of the charges following a tier III disciplinary
hearing and the determination was affirmed on administrative
appeal. This CPLR article 78 proceeding ensued.

      We confirm. The detailed misbehavior report, related
documentation and investigating officer's testimony provide
substantial evidence supporting the determination of guilt (see
Matter of Alicea v Fischer, 108 AD3d 888, 888-889 [2013]; Matter
of Smith v Prack, 98 AD3d 1180, 1180 [2012]). Petitioner's
challenge to the sufficiency of the handwriting comparison used
to support the forgery charge is unpersuasive given that the
investigator compared the forged documents with samples of
petitioner's handwriting and the Hearing Officer undertook an
independent assessment of these documents, noting the
similarities (see Matter of Lumpkin v Fischer, 93 AD3d 1011, 1012
[2012]; Matter of Agosto v Selsky, 39 AD3d 1106, 1107 [2007]).
Although petitioner further claims that he was denied the
opportunity to observe the cell search in violation of Department
of Corrections and Community Supervision Directive No. 4910 (V)
(C) (1), this regulation is inapplicable given that petitioner
was not removed from his cell for the purpose of conducting the
search, but had left the cell about an hour before the search
commenced (see Matter of Johnson v Fischer, 109 AD3d 1070, 1071
[2013]; Matter of Nieves v Goord, 262 AD2d 1042, 1042 [1999]).
Furthermore, there is no indication in the record that the
Hearing Officer was biased or that the determination flowed from
any alleged bias (see Matter of Smith v Prack, 98 AD3d at 1180;
Matter of Engles v Fischer, 78 AD3d 1410, 1411 [2010]). 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 Clark, JJ., concur.
                              -3-                  520425

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
