                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 11, 2014                   517227
________________________________

In the Matter of NATHANIEL JAY,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
BRIAN FISCHER, as Commissioner
   of Corrections and Community
   Supervision, et al.,
                    Respondents.
________________________________


Calendar Date:   August 4, 2014

Before:   Stein, J.P., McCarthy, Garry, Lynch and Clark, JJ.

                             __________


     Nathaniel Jay, Auburn, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondents.

                             __________


      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Rensselaer
County) to review a determination of respondent Commissioner of
Corrections and Community Supervision which found petitioner
guilty of violating a prison disciplinary rule.

      Petitioner was charged in a misbehavior report with
violating various prison disciplinary rules after a search of his
prison cell disclosed, among other things, gang-related items.
He was found guilty of possessing gang-related material following
a tier III disciplinary hearing, and the determination was
affirmed on administrative appeal. This CPLR article 78
proceeding ensued.
                              -2-                  517227

      We confirm. The misbehavior report and hearing testimony,
including that of a prison official with experience in
identifying gang-related materials, provide substantial evidence
to support the determination of guilt (see Matter of Doyle v
Prack, 115 AD3d 1110, 1111 [2014], lv denied     NY3d      [June
30, 2014]; Matter of Boyd v Fischer, 108 AD3d 995, 995 [2013]).
Petitioner contends that several confiscated items had been
reviewed by the mail room at his previous facility without
incident but, even if true, "this would not alter the fact that
'the material is nonetheless prohibited by the prison
disciplinary rule'" (Matter of Madison v Fischer, 108 AD3d 959,
960 [2013], quoting Matter of Smith v Fischer, 100 AD3d 1314,
1314 [2012]). The record further establishes that the hearing
was commenced and completed in a timely manner and that proper
extensions were obtained (see Matter of Shepherd v Fischer, 111
AD3d 1213, 1214 [2013], lv denied 22 NY3d 864 [2014]). We have
considered petitioner's remaining contentions, including that the
Hearing Officer was biased and that all of an offending pamphlet
had previously been approved through the media review process,
and find them to lack merit.

     Stein, J.P., McCarthy, Garry, Lynch and Clark, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
