                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 7, 2014                    517397
________________________________

In the Matter of REGINALD
   McFADDEN,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   June 6, 2014

Before:   Lahtinen, J.P., Stein, Egan Jr., Devine and Clark, JJ.

                             __________


     Reginald McFadden, Attica, petitioner pro se.

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

                             __________


Devine, J.

      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.

      After being escorted to a hospital outside of his
correctional facility, petitioner brandished a make-shift handgun
he had made out of various materials and aimed it at three
correction officers. The officers were able to subdue him, and
petitioner was then taken for further medical attention, where
the examining physician noted that petitioner had something
                              -2-                517397

hidden in his sock. A search revealed an envelope that
contained, among other things, a partial map of Pennsylvania and
several names and phone numbers, as well as a piece of styrofoam.
Based upon these events, a search was conducted of petitioner's
cell, which uncovered, among other things, a frame for a prop gun
made out of styrofoam, handmade bullets made out of aluminum foil
and a toothbrush sharpened to a point at one end. As a result of
the foregoing, petitioner was charged in three misbehavior
reports with attempting to escape, violent conduct, creating a
disturbance, assault, possessing a weapon (two counts), making
threats, possessing escape paraphernalia (two counts), possessing
an altered item and possessing contraband. Following a tier III
disciplinary hearing covering all of the reports, petitioner was
found guilty as charged. The determination was upheld on
administrative appeal, resulting in this CPLR article 78
proceeding.

      We confirm. Substantial evidence, consisting of the
misbehavior reports, related documentation and the hearing
testimony, supports the determination of guilt (see Matter of
Curry v Fischer, 113 AD3d 981, 982 [2014]; Matter of Oliver v
Fischer, 107 AD3d 1268, 1268-1269 [2013]). Although the
correction officer who actually placed the prop gun in the
facility evidence drop box failed to write his name on the
contraband log sheet (see Dept of Corr & Community Supervision
Directive No. 4910A [IV]), hearing testimony and a "to/from"
report establish that the evidence was properly secured, and the
defect on the log sheet does not require annulment of the
determination (see Matter of Chapman v Goord, 49 AD3d 944, 945
[2008]; Matter of Cole v Goord, 47 AD3d 1147, 1147 [2008]).

      Turning to petitioner's procedural challenges, "there is no
indication that the transcript of the hearing was deliberately
altered or that significant portions are missing such as to
preclude meaningful review" (Matter of Costello v Smith, 26 AD3d
566, 567 [2006]; accord Matter of Gaston v Fischer, 109 AD3d
1063, 1064 [2013]). Further, we reject his contention that he
was not provided reasonable accommodations. Petitioner, who is
visually impaired and has a hearing disability, was provided with
eyeglasses and hearing aids, and the record demonstrates that he
understood the charges against him and knowledgeably participated
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in the proceedings (see Matter of Medina v New York State Dept.
of Corr. Servs., 104 AD3d 976, 977 [2013], lv denied 21 NY3d 859
[2013]). We also find no merit in petitioner's contention that
the hearing was not timely completed, as the record reflects that
proper extensions were obtained, including extensions to
accommodate petitioner's disability, and that the hearing began
and ended within the authorized time frame (see Matter of Pooler
v Fischer, 107 AD3d 1256, 1257 [2013], lv denied 22 NY3d 855
[2013]; Matter of McNeil v Fischer, 95 AD3d 1520, 1521 [2012]).
Finally, our review of the record reveals no indication that the
Hearing Officer was biased or that the determination flowed from
any alleged bias (see Matter of Guillory v Fischer, 110 AD3d
1426, 1427 [2013], appeal dismissed 22 NY3d 1111 [2014]).
Petitioner's numerous remaining claims have been considered and
found to be without merit.

     Lahtinen, J.P., Stein, Egan Jr. and Clark, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
