                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 14, 2015                      519088
________________________________

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


Calendar Date:   March 31, 2015

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

                             __________


     Gilbert Pilet, Ossining, 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.

      A correction officer observed petitioner exchanging punches
with another inmate in the mess hall and ordered him to stop
engaging in such conduct. Petitioner ignored the officer's
directives, but was eventually subdued and placed in mechanical
restraints. Thereafter, he was charged in a misbehavior report
with fighting, engaging in violent conduct, creating a
disturbance and refusing a direct order. Petitioner was found
guilty of the charges following a tier III disciplinary hearing
and the determination was later affirmed on administrative appeal
with a modified penalty. He then commenced this CPLR article 78
                                 -2-                519088

proceeding.1

      We confirm. Initially, we find no merit to petitioner's
claim that he was improperly denied the right to call the
physician who admitted him to the infirmary as a witness inasmuch
as this individual was not present in the mess hall and did not
have personal knowledge of the incident that provided the basis
for the misbehavior report (see Matter of Rosales v Pratt, 98
AD3d 764, 765 [2012], lv denied 19 NY3d 816 [2012]; Matter of
Tafari v Fischer, 94 AD3d 1324, 1325 [2012], lv denied 19 NY3d
807 [2012]). In addition, upon reviewing the record, we find no
indication that the Hearing Officer was biased or that the
determination flowed from any alleged bias (see Matter of Harris
v Piccolo, 122 AD3d 1044, 1045 [2014]; Matter of Garcia v Garner,
122 AD3d 988, 989 [2014]). Furthermore, the transcript of the
hearing belies petitioner's contention that the audiotape was
altered in such a manner that most of the witness testimony is
missing. Although there are some inaudible gaps, they are not so
significant as to preclude meaningful review (see Matter of
Merritt v Fischer, 108 AD3d 993, 994-995 [2013]; Matter of
Bookman v Fischer, 107 AD3d 1260, 1260 [2013]). We have
considered petitioner's remaining arguments and find them to be
unpersuasive.

         McCarthy, J.P., Rose, Lynch and Clark, JJ., concur.




     1
        Although the petition arguably raised the issue of
substantial evidence and the proceeding was therefore properly
transferred to this Court, petitioner has abandoned this issue by
not raising it in his brief (see Matter of Rogers v Prack, 118
AD3d 1223, 1224 n [2014], lv granted 24 NY3d 916 [2015]).
                              -3-                  519088

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
