                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 25, 2015                     520172
________________________________

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


Calendar Date:   May 5, 2015

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

                               __________


     Jose Burgos, Elmira, 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 Albany County) to
review a determination of the Commissioner of Corrections and
Community Supervision which found petitioner guilty of violating
a prison disciplinary rule.

      While petitioner was confined in the special housing unit,
his cell was searched and a sharpened piece of plexiglass was
found in a jar of peanut butter located in a locker in the back
of his cell. As a result, petitioner was charged in a
misbehavior report with possessing a weapon and smuggling.
Following a tier III disciplinary hearing, he was found guilty of
possessing a weapon, but not guilty of smuggling. The
determination was later affirmed on administrative appeal with a
modified penalty. This CPLR article 78 proceeding ensued.
                              -2-                  520172

      We confirm. The misbehavior report and related
documentation, together with the testimony of the correction
officer who conducted the search, provide substantial evidence
supporting the determination of guilt (see Matter of Morales v
Fischer, 119 AD3d 1298, 1299 [2014]; Matter of Alache v Fischer,
91 AD3d 1240, 1241 [2012]). Although petitioner claims that he
was improperly denied the opportunity to observe the search in
violation of Department of Corrections and Community Supervision
Directive No. 4910, this directive is inapplicable given that he
had previously been removed from his cell and placed in
administrative segregation due to a separate incident (see Matter
of Johnson v Fischer, 109 AD3d 1070, 1071 [2013]; Matter of
Griffin v Selsky, 60 AD3d 1247, 1248 [2009]). Furthermore, we
find no error in the Hearing Officer's denial of petitioner's
request for the videotape depicting his removal from his cell
because such evidence was irrelevant (see Matter of Byrd v
Fischer, 117 AD3d 1263, 1263 [2014]; Matter of Cowart v
Senkowski, 263 AD2d 730, 731 [1999]).

     Peters, P.J., McCarthy, Garry and Clark, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
