                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 23, 2015                    519187
________________________________

In the Matter of JASON CATO,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   February 24, 2015

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

                             __________


     Jason Cato, Malone, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Martin A.
Hotvet 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 certain prison disciplinary rules.

      While a correction officer was counseling petitioner and
another prison inmate inside a dorm, petitioner ran outside the
dorm, refused the correction officer's directive to stop and,
when the correction officer caught up to him, tried to strike the
correction officer in the head with a pen. As a result,
petitioner was charged in a misbehavior report with engaging in
violent conduct, assaulting staff, possessing a weapon,
interfering with an employee, refusing a direct order, being out
                                -2-                519187

of place, leaving an assigned area and a movement regulation
violation. At a tier III disciplinary hearing, petitioner
pleaded guilty to the charges of being out of place and a
movement regulation violation and otherwise pleaded not guilty.
After the hearing, petitioner was found guilty of all charges.
The determination was affirmed upon administrative appeal, and
this proceeding ensued.

      We confirm. The detailed misbehavior report and the
hearing testimony of, among others, the author of the report and
two other prison employees who witnessed petitioner attempt to
strike the correction officer provide substantial evidence
supporting the determination of guilt (see Matter of Quezada v
Fischer, 113 AD3d 1004, 1004 [2014]; Matter of Ferguson v
Fischer, 107 AD3d 1272, 1272 [2013]).1 The record is devoid of
evidence that the Hearing Officer was biased (see Matter of Ramos
v Prack, 125 AD3d 1036, 1037 [2015]) or had predetermined
petitioner's guilt (see Matter of Harding v Prack, 118 AD3d 1231,
1232 [2014]). Finally, contrary to petitioner's contention, the
record amply demonstrates that he was not deprived of his right
to call relevant witnesses (see Matter of Clark v Fischer, 120
AD3d 1468, 1469 [2014], lv denied 24 NY3d 912 [2015]).

      Petitioner's remaining contentions, including his assertion
that he was denied adequate assistance, have been examined and
found to be lacking in merit.

        Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ., concur.




    1
        To the extent that petitioner asserts that substantial
evidence does not support the determination of guilt as to the
two charges he pleaded guilty to, he is precluded from raising
such assertion by virtue of his plea (see Matter of Campbell v
Bedard, 123 AD3d 1278, 1278 [2014]).
                              -3-                  519187

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
