                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 4, 2014                   516705
________________________________

In the Matter of DARNELL
   CUMMINGS,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

BRIAN FISCHER, as Commissioner
   of Corrections and
   Community Supervision,
                    Respondent.
________________________________


Calendar Date:   August 21, 2014

Before:   McCarthy, J.P., Garry, Egan Jr., Lynch and Clark, JJ.

                             __________


     Darnell Cummings, Alden, petitioner pro se.

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

                             __________


Egan Jr., J.

      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Albany County) to
review two determinations of respondent which found petitioner
guilty of violating certain prison disciplinary rules.

      Petitioner, a prison inmate, received three misbehavior
reports on April 25, 2012. The first misbehavior report charged
petitioner with refusing a direct order, and the second
misbehavior report charged him with making threats, creating a
disturbance, refusing a direct order, interfering with an
employee, harassment and delaying the count. These charges arose
out of an incident in which petitioner refused to knock on the
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wall of the neighboring cell when asked to do so by a correction
officer and his subsequent conduct and statements directed at the
correction officer. Following a combined tier III hearing,
petitioner was found guilty of all charges contained in the
second misbehavior report, but not guilty of the single charge
contained in the first misbehavior report. Upon administrative
review, respondent upheld the determination.

      The third misbehavior report charged petitioner with
attempted assault on staff, violating frisk procedure, refusing a
direct order and violent conduct. This misbehavior report
stemmed from an incident that occurred when petitioner was being
removed from his cell to be taken to the secure housing unit.
Following a tier III hearing, petitioner was found guilty of all
charges contained in this misbehavior report. Upon
administrative appeal, respondent upheld the determination of
guilt, but reduced the penalty. Petitioner thereafter commenced
this proceeding challenging both determinations of respondent.

      Preliminarily, we note that petitioner has specifically
abandoned his argument that the respective determinations were
not supported by substantial evidence. Turning to his procedural
claims, we disagree with petitioner's contention that he was
denied the right to call witnesses. In both hearings, petitioner
requested the testimony of numerous witnesses. Ultimately, the
respective Hearing Officers permitted relevant witnesses to
testify and denied the testimony of those witnesses who were not
present during the specific events giving rise to the misbehavior
reports (see Matter of Hines v Prack, 109 AD3d 1031, 1032 [2013];
Matter of Moreno v Fischer, 100 AD3d 1167, 1168 [2012]). Nor are
we persuaded that the determinations of guilt were the result of
alleged hearing officer bias rather than the evidence presented
(see Matter of Smith v Rock, 108 AD3d 889, 890 [2013], lv denied
22 NY3d 854 [2013]; Matter of Mayo v Fischer, 82 AD3d 1421, 1422
[2011], lv denied 17 NY3d 702 [2011]). Finally, with regard to
the hearing conducted on the third misbehavior report, we reject
petitioner's contention that he was improperly denied the final
unusual incident report. Petitioner was provided with the
preliminary report, the final report is substantially the same
and neither version of the report contains information tending to
exonerate petitioner. Thus, petitioner's ability to present his
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defense was not prejudiced by the failure to provide him with the
final unusual incident report (see Matter of Phelps v Fischer,
108 AD3d 1003, 1004 [2013], appeal dismissed 22 NY3d 1046 [2014];
Matter of Justice v Fischer, 67 AD3d 1286, 1286-1287 [2009], lv
denied 14 NY3d 709 [2010]).

     McCarthy, J.P., Garry, Lynch and Clark, JJ., concur.



      ADJUDGED that the determinations are confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
