                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 15, 2016                   522117
________________________________

In the Matter of WILLIE CLARK,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

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


Calendar Date:   August 8, 2016

Before:   Peters, P.J., McCarthy, Garry, Clark and Mulvey, JJ.

                             __________


     Willie Clark, Comstock, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Owen Demuth
of counsel), for respondent.

                             __________


      Appeal from a judgment of the Supreme Court (Hayden, J.),
entered October 5, 2015 in Chemung County, 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 the course of a narcotics investigation at the
correctional facility where petitioner is incarcerated, certain
telephone calls made by petitioner in May 2014 were monitored and
petitioner was heard speaking to a woman regarding a plan to
bring controlled substances, including marihuana, cocaine and
pills, into the correctional facility. The woman was arrested
after she passed these substances on to a third person who was to
transport them into the correctional facility. As a result,
petitioner was charged in a misbehavior report with conspiring to
                              -2-                  522117

possess controlled substances, smuggling and making third-party
telephone calls. Following a tier III disciplinary hearing, he
was found guilty of the charges. On administrative appeal, the
charge of making third-party telephone calls was dismissed and
the penalties were reduced, but the modified determination was
otherwise upheld. Petitioner commenced this CPLR article 78
proceeding challenging the modified determination. Following
service of respondent's answer, Supreme Court dismissed the
petition and petitioner now appeals.

      Petitioner challenges the determination on procedural
grounds arguing, among other things, that he was improperly
denied as a witness the unnamed third party referenced in the
misbehavior report. Significantly, the investigator who
testified at the hearing indicated that this person's identity
was confidential due to the fact that the criminal investigation
was still ongoing. Given that the revelation of this
individual's name could compromise the investigation and
jeopardize institutional security, the denial of petitioner's
request was not improper (see Matter of Williams v Goord, 23 AD3d
872, 873 [2005]; Matter of Fludd v Goord, 18 AD3d 929, 930
[2005]; see also Matter of Shannon v Goord, 282 AD2d 909, 910
[2001]). We have considered petitioner's remaining contentions
and find that they are either unpreserved for our review or are
lacking in merit. Therefore, the petition was properly
dismissed.

      Peters, P.J., McCarthy, Garry, Clark and Mulvey, JJ.,
concur.


     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
