                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 10, 2016                   521260
________________________________

In the Matter of JERMAINE
   SAFFORD,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   September 20, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Clark and Aarons, JJ.

                             __________


     Jermaine Safford, Malone, 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 respondent finding petitioner guilty of
violating certain prison disciplinary rules.

      An investigation by the Inspector General's office
disclosed that petitioner was involved with other inmates and
visitors in a conspiracy to smuggle drugs into the facility where
he was incarcerated. Petitioner was charged in a misbehavior
report with conspiracy to smuggle drugs into the facility,
smuggling, violating facility visitation rules and making third-
party telephone calls. Following a tier III hearing at which
petitioner admitted the third-party call violation, he was found
guilty of the remaining charges and a penalty was imposed. The
                               -2-                521260

determination was upheld on administrative appeal, and this CPLR
article 78 proceeding ensued.

      The misbehavior report and testimony of its author who
conducted the investigation, combined with the confidential
information and testimony, established petitioner's active role
in the drug-smuggling conspiracy and provide substantial evidence
to support the determination of guilt (see Matter of Brown v
Venettozzi, 139 AD3d 1216, 1217 [2016]).1 Petitioner's
contention that he was denied the right to be present for the end
of the hearing after he declined to attend, claiming that he was
ill, is meritless, as the record reflects that the Hearing
Officer interviewed the nurse on duty who testified that he was
capable of attending. Petitioner was repeatedly offered the
opportunity to attend and informed that the hearing would proceed
in his absence and, thus, his refusal constituted a waiver of his
right to be present as well as any procedural challenges to the
remainder of the hearing (see Matter of Hernandez v Fischer, 111
AD3d 1042, 1043 [2013]; Matter of Raqiyb v Fischer, 82 AD3d 1432,
1433-1434 [2011]).

      Petitioner's contention that he was denied the right to
call witnesses is belied by the record, which reflects that the
Hearing Officer made extensive and repeated efforts over the
course of several days to contact the requested witnesses,
including those outside the facility, leaving messages on
answering machines and using numerous numbers provided by
petitioner (see Matter of Sherman v Annucci, 142 AD3d 1196, 1197
[2016]). We reject his claim that the Hearing Officer was
required to interview an inmate who was also charged in this
conspiracy, as the inmate refused to testify in writing and
provided a specific reason therefor and had not previously
indicated a willingness to testify (see Matter of Chandler v
Annucci, 135 AD3d 1258, 1259 [2016]). Further, the correction
officer who questioned the inmate testified that the inmate


      1
         Petitioner's guilty plea to the third-party call charge
precludes any challenge to the sufficiency of the evidence of
that charge (see Matter of Clarke v Venettozzi, 139 AD3d 1221,
1221 [2016]).
                              -3-                  521260

refused to come to petitioner's hearing and recounted his stated
reasons, and further inquiry was not necessary as his reasons
were not "clearly specious" (Matter of Jackson v Prack, 126 AD3d
1243, 1244 [2015] [internal quotation marks and citation
omitted]).

      Contrary to petitioner's contention, the record reflects
that the hearing was conducted in a fair, deliberative and
impartial manner; it contains no support for his claim that the
Hearing Officer was biased, and we find that the determination of
guilt flowed from the substantial evidence adduced at the hearing
rather than from any alleged bias (see Matter of Allen v
Venettozzi, 139 AD3d 1208, 1209 [2016], lv denied 28 NY3d 903
[2016]; Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).
Finally, given that petitioner's protracted conduct in
introducing drugs into the facility posed a serious threat to its
institutional safety and security, we do not find the imposition
of 12 months of confinement in the special housing unit, which
has already been served, or any other aspect of the penalty to be
excessive (see Matter of Barakat v Goord, 271 AD2d 776, 776-777
[2000]; compare Matter of Kim v Annucci, 128 AD3d 1196, 1197-1198
[2015]). Petitioner's remaining claims, to the extent they have
been preserved for our review, have been considered and
determined to lack merit.

      Peters, P.J., McCarthy, Egan Jr., Clark and Aarons, JJ.,
concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
