                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 28, 2016                     522435
________________________________

In the Matter of SHAREF REDMON,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
JOSEPH T. SMITH, as
   Superintendent of Shawangunk
   Correctional Facility,
                    Respondent.
________________________________


Calendar Date:   June 6, 2016

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

                             __________


     Sharef Redmon, Romulus, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs 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 commenced this CPLR article 78 proceeding
challenging a determination finding him guilty, following a tier
III disciplinary hearing, of assault on a visitor and violating
visiting room guidelines after he was observed by a correction
officer slapping his visitor in the face in the honor visiting
room. The incident was captured on a video recording, which was
played at the hearing. The determination was upheld on
administrative appeal.
                              -2-                522435

      Contrary to petitioner's claim, the video recording and
testimony of the correction officer who witnessed the incident
provided substantial evidence to support the determination (see
Matter of Hyatt v Annucci, 127 AD3d 1479, 1480 [2015]). The
visitor's testimony denying that petitioner slapped her and
petitioner's explanation for the incident presented credibility
questions for the Hearing Officer to resolve, aided by the video
recording (see Matter of Boyd v Prack, 136 AD3d 1136, 1136
[2016]). The discrepancy between the misbehavior report and the
video recording as to which hand petitioner used to slap the
victim was resolved at the hearing, after the video recording was
viewed, through the correction officer's testimony that the video
was accurate, and no prejudice resulted to petitioner (see
generally Matter of Mohamed v Prack, 137 AD3d 1402, 1403 [2016];
Matter of Edwards v Goord, 12 AD3d 1002, 1003 [2004]).

      Petitioner's procedural claims regarding his employee
assistant and the unusual incident report are unpreserved for our
review as they were not raised at the hearing and may not be
considered (see Matter of Khan v New York State Dept. of Health,
96 NY2d 879, 880 [2001]). The suspension of petitioner's
visitation privileges was made in accordance with Department of
Corrections and Community Supervision Directive No. 4403 (VII)
[http://www.doccs.ny.gov/Directives/4403.pdf], which provides
that visitation privileges may be suspended for up to one year
based upon an inmate's assault on a visitor (see 7 NYCRR 270.2
[B] [26] [i] [rule 180.10]). Finally, the record reflects that
the determination of guilt flowed from the compelling evidence
and not from any hearing officer bias (see Matter of Garcia v
Prack, 128 AD3d 1244, 1245 [2015]).

      Peters, P.J., Garry, Egan Jr., Devine and Clark, JJ.,
concur.
                              -3-                  522435

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
