                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 31, 2014                     517404
________________________________

In the Matter of BRAD WHITE,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

DARWIN LaCLAIR, as
   Superintendent of Franklin
   Correctional Facility,
   et al.,
                    Respondents.
________________________________


Calendar Date:   June 9, 2014

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

                             __________


     Brad White, Gouverneur, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs of counsel), for respondents.

                             __________


      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Franklin County)
to review a determination of the Commissioner of Corrections and
Community Supervision which found petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner's ex-wife filed a complaint with the State
Police alleging that petitioner, who is a prison inmate, had
violated an order of protection prohibiting him from having
contact with their three children. During the ensuing
investigation, it was discovered that petitioner had placed a
telephone call to his father's residence during which he spoke to
one of the children. There was a Family Court order in effect at
the time prohibiting such contact, and the children's names had
                              -2-                517404

also been placed on the negative correspondence and telephone
list. As a result of this incident, petitioner was charged in a
misbehavior report with communicating with a person who is the
subject of an order of protection and violating facility
telephone procedures. Following a tier III disciplinary hearing,
he was found guilty of the charges and the determination was
affirmed on administrative appeal. This CPLR article 78
proceeding ensued.

      We confirm. Substantial evidence, consisting of the
detailed misbehavior report, related documentation and
petitioner's testimony in which he admitted to making the
telephone call at issue, supports the determination of guilt (see
Matter of Nimmons v Fischer, 85 AD3d 1460, 1461 [2011]; Matter of
Flemming v Fischer, 74 AD3d 1693, 1694 [2010]). Although
petitioner maintains that the order precluding his contact with
his children was no longer in effect, this is belied by the
documentary evidence in the record. Moreover, to the extent that
petitioner claims that he was unaware that the children's names
were on the negative correspondence and telephone list and that
he did not know if the child to whom he was speaking was covered
by the order of protection, this presented a credibility issue
for the Hearing Officer to resolve (see Matter of Gallagher v New
York State Dept. of Correctional Servs., 96 AD3d 1319, 1320
[2012]). Petitioner's remaining contentions have been reviewed
and found to be without merit. We find no reason to disturb the
determination at issue.

      Lahtinen, J.P., Stein, Garry, Egan Jr. and Devine, JJ.,
concur.
                              -3-                  517404

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
