                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 23, 2015                    518744
________________________________

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


Calendar Date:   February 24, 2015

Before:   Lahtinen, J.P., Egan Jr., Rose and Lynch, JJ., concur.

                             __________


      Morrison & Foerster, LLP, New York City (Carl H. Loewenson
of counsel), for petitioner.

      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 which found petitioner
guilty of violating a prison disciplinary rule.

      Following an investigation in which confidential
information was received, petitioner was charged in a misbehavior
report with organizing a demonstration. Petitioner was found
guilty as charged after a disciplinary hearing and that
determination was affirmed upon administrative appeal. This CPLR
article 78 proceeding ensued.
                              -2-                518744

      We confirm. The misbehavior report, testimony at the
hearing and the confidential information considered by the
Hearing Officer provide substantial evidence to support the
determination of guilt (see Matter of Smith v Fischer, 64 AD3d
1061, 1061-1062 [2009], lv denied 13 NY3d 712 [2009]). Our
review of the record satisfies us that the Hearing Officer was
able to independently assess the reliability of the confidential
information through his detailed interview of the correction
officer who received it (see Matter of Staton v Goord, 41 AD3d
1105, 1106 [2007]; Matter of Biggs v Goord, 308 AD2d 619, 620
[2003]).

      Petitioner's contention that the charges against him were
vague, particularly given the fact that he was not informed of an
additional date and time of the alleged misconduct until after
the hearing commenced, is without merit. The misbehavior report
relates that petitioner encouraged others to participate in a
three-day demonstration. When petitioner was informed during the
hearing that the alleged misconduct of meeting with other
participants had actually occurred on the evening of the day
before the date previously alleged, the Hearing Officer obtained
related documentation for petitioner regarding the corrected
date. Although the Hearing Officer provided petitioner with an
opportunity to adjourn the hearing for additional time to prepare
a defense, petitioner declined. Under these circumstances,
petitioner has not demonstrated any prejudice by any alleged
vagueness in the misbehavior report nor was he precluded from
preparing a defense (see Matter of Werner v Philips, 20 AD3d 711,
712 [2005]; Matter of Gibson v Ricks, 288 AD2d 569, 570 [2001]).

     Lahtinen, J.P., Egan Jr., Rose and Lynch, JJ., concur.
                              -3-                  518744

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
