                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 25, 2015                     518692
________________________________

In the Matter of DERRICK R.
   OMARO,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   May 5, 2015

Before:   McCarthy, J.P., Garry, Rose and Clark, JJ.

                               __________


     Derrick R. Omaro, Comstock, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff 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 the Commissioner of Corrections and
Community Supervision which found petitioner guilty of violating
a prison disciplinary rule.

      During a search of petitioner's cell, a correction officer
discovered, among other things, documents that were alleged to be
improperly taken from the law library and materials bearing the
name of a purported inmate organization. As a result, petitioner
was charged in a misbehavior report with possessing unauthorized
organizational material and contraband. Following a tier III
disciplinary hearing, petitioner was found guilty of possessing
unauthorized organizational material and not guilty of possessing
                              -2-                518692

contraband. That determination was affirmed upon administration
appeal, and this CPLR article 78 proceeding ensued.

      We confirm. The detailed misbehavior report, the materials
in question – which have been provided to this Court for our in
camera review – and the hearing testimony, in which petitioner
admitted to possessing the materials and that the purported
organization was not approved, provide substantial evidence to
support the determination of guilt (see Matter of Nimmons v
Fischer, 85 AD3d 1460, 1461 [2011]; Matter of Benston v Fischer,
67 AD3d 1139, 1140 [2009]). The fact that the materials at issue
do not advocate violence does not preclude a finding that he
possessed unauthorized organizational material, which is defined
as, among other things, material "that could facilitate
organizational activity . . . by an unauthorized organization" (7
NYCRR 270.2 [B] [6] [v]). In addition, petitioner is incorrect
that Department of Corrections and Community Supervision
Directive No. 4760, regarding the proper procedures for forming
an offender organization, encouraged preparing such materials for
an application to seek approval for an offender organization.
Directive No. 4760 explicitly informed inmates that they "should
not create or possess, in connection with a request to form an
offender organization[,] . . . material that could facilitate
organizational activity within the institution unless and until
the organization has been approved." Further, the Hearing
Officer's denial of two witnesses requested by petitioner was
justified given that petitioner's stated reasons for requesting
those witnesses established that they could not provide relevant
testimony (see Matter of Toliver v New York State Commr. of Corr.
& Community Supervision, 114 AD3d 987, 988 [2014]; Matter of
Stallone v Fischer, 109 AD3d 1065, 1066 [2013]).

      Petitioner's remaining contentions, to the extent that they
are preserved, have been examined and found to be lacking in
merit.

     McCarthy, J.P., Garry, Rose and Clark, JJ., concur.
                              -3-                  518692

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
