                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 10, 2016                   522023
________________________________

In the Matter of LEO A. MARINO,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

STEVEN RACETTE, as
   Superintendent of Clinton
   Correctional Facility,
                    Respondent.
________________________________


Calendar Date:   September 20, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Rose and Devine, JJ.

                             __________


     Leo A. Marino, Malone, 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 Clinton County)
to review a determination of respondent finding petitioner guilty
of violating a prison disciplinary rule.

      Petitioner was charged in a misbehavior report with
disobeying a direct order, being out of place and creating a
disturbance after he went to the law library and failed to report
to work in the mess hall as scheduled. Following a tier II
disciplinary hearing, petitioner was found guilty of being out of
place and not guilty of the remaining charges. The determination
was affirmed upon administrative appeal, and this CPLR article 78
proceeding ensued.

      We confirm. Notwithstanding petitioner's contention to the
contrary, the misbehavior report and petitioner's testimony
                              -2-                  522023

provide substantial evidence to support the determination of
guilt (see Matter of A'Gard v LaValley, 104 AD3d 1031, 1031
[2013]; Matter of Lebron v Artus, 35 AD3d 1108, 1109 [2006], lv
denied 8 NY3d 810 [2007]). To the extent that petitioner
contends that the Hearing Officer predetermined his guilt, the
record demonstrates that the determination of guilt was the
result of the evidence and did not flow from any alleged bias
(see Matter of Harding v Prack, 118 AD3d 1231, 1232 [2014];
Matter of Pine v Fischer, 118 AD3d 1196, 1198 [2014], lv denied
24 NY3d 904 [2014]). Petitioner's remaining contentions are not
preserved for this Court's review.

     Garry, J.P., Egan Jr., Lynch, Rose and Devine, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
