                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 8, 2016                   523093
________________________________

In the Matter of DERREL AUSTIN,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   October 25, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Rose and Clark, JJ.

                             __________


     Derrel Austin, 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 respondent finding petitioner guilty of
violating certain prison disciplinary rules.

      Following an investigation that revealed petitioner's
involvement in the supply and distribution of synthetic
marihuana, or K-2, within the prison facility to five other
inmates, he was charged in a misbehavior report with smuggling,
selling an intoxicant and possession of a dangerous substance.
Following a tier III disciplinary hearing, petitioner was found
guilty of smuggling and selling an intoxicant. The determination
was affirmed on administrative appeal, and this CPLR article 78
proceeding ensued.
                              -2-                523093

      We confirm. The misbehavior report and hearing testimony,
as well as the confidential testimony submitted for in camera
review, provide substantial evidence to support the determination
that petitioner was guilty of smuggling and selling an intoxicant
(see Matter of Ellison v Annucci, 142 AD3d 1233, 1234 [2016];
Matter of Ralands v Prack, 131 AD3d 1334, 1335 [2015]). Although
petitioner denied that he smuggled or sold an intoxicant, these
exculpatory claims presented credibility issues for the Hearing
Officer to resolve (see Matter of Gano v Venettozzi, 142 AD3d
1240, 1241 [2016]; Matter of Robinson v Annucci, 122 AD3d 1055,
1055 [2014]). We are also unpersuaded by petitioner's assertion
that synthetic marihuana is not an intoxicant and that he was
therefore improperly charged with use of an intoxicant (see
Matter of Roman v Prack, 133 AD3d 959, 960 [2015]; Matter of
Ralands v Prack, 131 AD3d at 1335; compare Matter of Burt v
Annucci, 131 AD3d 751, 752 [2015]).

      Turning to the balance of petitioner's contentions, we find
that the misbehavior report was sufficiently detailed to provide
him with adequate notice of the charges so as to enable him to
prepare a defense (see 7 NYCRR 251-3.1 [c] [1], [4]; Matter of
Bailey v Annucci, 142 AD3d 1195, 1196 [2016]; Matter of Zimmerman
v Annucci, 139 AD3d 1205, 1206 [2016]). We further reject
petitioner's argument that he was denied adequate employee
assistance given that the Hearing Officer remedied any purported
deficiencies and petitioner has not demonstrated that he was
prejudiced (see Matter of McMaster v Annucci, 138 AD3d 1289, 1290
[2016], lv denied 28 NY3d 902 [2016]; Matter of Pooler v Fischer,
107 AD3d 1256, 1257 [2013], lv denied 22 NY3d 855 [2013]).
Finally, upon reviewing the record, including the confidential
testimony, we find no basis to conclude that the Hearing Officer
was biased or that the determination flowed from any alleged bias
(see Matter of Bailey v Annucci, 142 AD3d at 1196; Matter of
Linares v Fischer, 119 AD3d 1300, 1301 [2014], lv denied 24 NY3d
909 [2014]). We have considered petitioner's remaining
contentions and find them to be without merit.


      McCarthy, J.P., Egan Jr., Lynch, Rose and Clark, JJ.,
concur.
                              -3-                  523093

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
