                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 17, 2015                   520883
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In the Matter of GILL TERRENCE,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   October 27, 2015

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

                             __________


     Gill Terrence, Alden, 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 Ulster County) to
review a determination of respondent finding petitioner guilty of
violating a prison disciplinary rule.

      Petitioner was charged in a misbehavior report with lewd
conduct after he watched a correction officer from the shower,
stepped out of the shower and exposed himself, then returned to
the shower leaving the curtain open and began masturbating.
Petitioner was found guilty following a tier III disciplinary
hearing. That determination was affirmed on administrative
appeal and this CPLR article 78 proceeding ensued.

      Contrary to petitioner's contention, the misbehavior report
and testimony from the correction officer who observed
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petitioner's behavior provide substantial evidence to support the
determination of guilt (see Matter of Fero v Prack, 110 AD3d
1128, 1128 [2013]; Matter of Collins v Fischer, 109 AD3d 1040,
1040 [2013], lv dismissed 23 NY3 954 [2014]). To the extent that
petitioner claims that the charge was fabricated, this presented
a credibility issue for the Hearing Officer to resolve (see
Matter of Coleman v Fischer, 87 AD3d 778, 779 [2011]).
Petitioner's procedural challenges, including his claim that the
Hearing Officer was biased, have been reviewed and found to be
either unpreserved or without merit.

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



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
