                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 14, 2016                    521332
________________________________

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


Calendar Date:   February 23, 2016

Before:   Peters, P.J., Egan Jr., Rose and Clark, JJ.

                             __________


     Julio Giano, Elmira, 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 Albany County) to
review a determination of the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner, a prison inmate, was charged with damaging
state property and possession of a weapon, altered items and
gambling paraphernalia following a search of his prison cell
during which a correction officer discovered and confiscated,
among other things, a section of tweezers that had been sharpened
to a point. Following a tier III disciplinary hearing,
petitioner was found guilty of all charges. On administrative
appeal, the finding of guilt on all charges was affirmed.
Petitioner thereafter commenced this CPLR article 78 proceeding.
                              -2-                521332

      Petitioner contends that no issue of substantial evidence
was raised, and, therefore, the matter was erroneously
transferred to this Court. Upon reviewing the verified petition,
we disagree. While petitioner's claims in his verified petition
are cast as procedural challenges, several of the claims therein
challenge the veracity and authenticity of the documentary and
testimonial evidence adduced at the hearing, and, therefore, such
allegations implicate the sufficiency of the evidence upon which
the determination of guilt is based. Accordingly, we find that
the matter was properly transferred to this Court (see Matter of
Bonez v Commissioner of Prison Sys. of State of N.Y., Dept. of
Corrections, 65 AD3d 1411, 1411 [2009]; Matter of Crawford v
Girdich, 301 AD2d 921, 921 & n [2003]).

      Turning to the merits, the misbehavior report, unusual
incident report, photograph of the weapon and documentary
evidence, together with the testimony of both the correction
officer who conducted the cell search and the correction officer
who assisted with the search, provide substantial evidence to
support the determination of guilt (see Matter of Perkins v
Annucci, 129 AD3d 1421, 1421 [2015]; Matter of Diaz v Prack, 127
AD3d 1489, 1490 [2015]; Matter of Nieves v Annucci, 123 AD3d
1368, 1368-1369 [2014]). Petitioner's contentions that the
prohibited items found in his cell were planted there to
retaliate against him and that he was not permitted to observe
and be present during the search of his cell raised credibility
issues for the Hearing Officer to resolve (see Matter of Fulmore
v Prack, 116 AD3d 1281, 1282 [2014]; Matter of Aguirre v Fischer,
111 AD3d 1219, 1220 [2013]; see also Matter of Horton v Annucci,
133 AD3d 1002, 1003 [2015]). As for petitioner's claim that the
disciplinary hearing was not conducted in a timely manner, the
record discloses that, although more than 14 days elapsed between
the writing of the misbehavior report and the conclusion of the
hearing (see 7 NYCRR 251-5.1 [b]), appropriate extensions were
obtained and the hearing was completed within the allotted time
frame (see Matter of Moreno v Fischer, 100 AD3d 1167, 1168
[2012]; Matter of Ifill v Fischer, 72 AD3d 1367, 1368 [2010]).
Finally, upon reviewing the record, we find no indication that
the Hearing Officer was biased or that the determination flowed
from any alleged bias (see Matter of Fowler v Fischer, 106 AD3d
1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of White
                              -3-                  521332

v Fischer, 95 AD3d 1582, 1583 [2012]). Petitioner's remaining
contentions, to the extent that they are preserved for our
review, have been examined and found to be without merit.

     Peters, P.J., Egan Jr., Rose and Clark, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
