                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 2, 2014                   517995
________________________________

In the Matter of HOWARD WELCH,
                    Petitioner,
      v

BRIAN FISCHER, as Commissioner              MEMORANDUM AND JUDGMENT
   of Corrections and
   Community Supervision,
                    Respondent.
________________________________


Calendar Date:   August 4, 2014

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

                             __________


     Howard Welch, Johnstown, 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 respondent which found petitioner
guilty of violating certain prison disciplinary rules.

      An investigation into a drug operation revealed that
petitioner had conspired to bring marihuana and synthetic
marihuana into the correctional facility. As a consequence,
petitioner was charged in a misbehavior report with smuggling,
possession of contraband and possession of drugs. Following a
tier III disciplinary hearing, he was found guilty as charged and
the determination was affirmed on administrative appeal. This
CPLR article 78 proceeding ensued.
                              -2-                  517995

      The misbehavior report, hearing testimony and confidential
information, reviewed in camera, provide substantial evidence to
support the determination of guilt with regard to the smuggling
and possession of contraband and drug charges (see Matter of
Carrero v Fischer, 106 AD3d 1299, 1299 [2013]; Matter of Flanders
v Fischer, 105 AD3d 1238, 1239 [2013]). Contrary to petitioner's
contention, the fact that he was never found to be in possession
of marihuana or synthetic marihuana does not negate his guilt, as
a violation of the rules occurred when petitioner conspired to
bring these items into the facility (see 7 NYCRR 270.2 [B] [14]
[xiii], [xv]; 270.3 [b]; Matter of Maldonado v New York State
Dept. of Corr. Servs., 97 AD3d 873, 874 [2012]; Matter of Sanders
v LaClair, 67 AD3d 1226, 1227 [2009]). Petitioner's remaining
contentions have been considered and found to be without merit.

      Peters, P.J., Garry, Egan Jr., Lynch and Clark, JJ.,
concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
