                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 16, 2016                     521758
________________________________

In the Matter of MARCUS
   ANTHONY MICOLO,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   May 3, 2016

Before:   Peters, P.J., McCarthy, Rose, Clark and Aarons, JJ.

                               __________


     Marcus Anthony Micolo, Dannemora, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger of counsel), for respondent.

                               __________


      Appeal from a judgment of the Supreme Court (Hard, J.),
entered July 8, 2015, which dismissed petitioner's application,
in a proceeding pursuant to CPLR article 78, to review a
determination of respondent finding petitioner guilty of
violating certain prison disciplinary rules.

      During a random pat frisk of petitioner, he was discovered
in possession of two partially crushed pills of percocet that he
was supposed to have consumed earlier that day when it was given
to him at the medical window. As a result, he was charged in a
misbehavior report with possessing an authorized item in an
unauthorized area, possessing a narcotic and smuggling.
Following a tier III disciplinary hearing, petitioner was found
guilty as charged. The determination was affirmed upon
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administrative appeal, prompting petitioner to commence this CPLR
article 78 proceeding. Supreme Court dismissed the petition and
this appeal ensued.

      We affirm. Although, before Supreme Court, petitioner did
not have access to the certified hearing transcript because
respondent inadvertently submitted it as a confidential exhibit
with its answer, petitioner has now received the complete
certified transcript. We discern no prejudice and, thus, any
error will be disregarded (see CPLR 7804 [e]; Matter of Smith v
Quinn, 120 AD3d 1509, 1510 [2014]; Matter of Cliff v Kingsley,
293 AD2d 954, 955 [2002]). We reject petitioner's contention
that he was disciplined in violation of Correction Law § 138, as
he does not allege that he has never received a copy of the rules
at issue and, moreover, the record establishes that he had actual
knowledge that the conduct he engaged in was prohibited (see
Correction Law § 138 [3], [5]). Further, petitioner was properly
removed from the hearing where, after being told to stop
interjecting during a witness's testimony and warned that he
would be removed, he continued to engage in disruptive and
argumentative behavior (see 7 NYCRR 254.6 [a] [2]; Matter of
Garcia v Prack, 128 AD3d 1244, 1245 [2015]). Finally,
petitioner's claim that the Hearing Officer improperly denied his
request for a certain witness is unpersuasive, as the record
establishes that petitioner never clearly made such a request.
Petitioner's remaining contentions are either unpreserved or lack
merit.

      Peters, P.J., McCarthy, Rose, Clark and Aarons, JJ.,
concur.
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ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
