                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 12, 2016                      521181
________________________________

In the Matter of KEVIN
   ZIMMERMAN,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   March 29, 2016

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

                             __________


     Kevin Zimmerman, 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 respondent finding petitioner guilty of
violating certain prison disciplinary rules.

      Petitioner, a prison inmate, was charged with smuggling,
conspiring with another person to smuggle controlled substances
into a correctional facility, violating facility visiting room
procedures and participating in third-party telephone calls.
Following a tier III disciplinary hearing, petitioner was found
guilty of smuggling, conspiring to smuggle narcotics or marihuana
into a correctional facility and participating in third-party
telephone calls, and the determination was later affirmed on
administrative appeal. This CPLR article 78 proceeding ensued.
                              -2-                521181

      We confirm. The misbehavior report, the testimony of its
author and the confidential information and testimony considered
by the Hearing Officer in camera, as well as petitioner's taped
telephone conversations introduced into evidence at the hearing,
provide substantial evidence supporting the determination of
guilt (see Matter of Jones v Prack, 114 AD3d 985, 985 [2014];
Matter of Sanders v LaClair, 67 AD3d 1226, 1226 [2009]).
Although petitioner denied conspiring to smuggle drugs into the
facility, this presented a credibility issue for the Hearing
Officer to resolve (see Matter of Gomez v Leclaire, 53 AD3d 994,
995-996 [2008]; Matter of Reed v Goord, 16 AD3d 796, 796-797
[2005]). The fact that petitioner was not found to be in
possession of any controlled substances does not negate his
guilt, as a violation of the rules occurred when petitioner
conspired to introduce such items into the facility (see Matter
of Welch v Fischer, 121 AD3d 1139, 1140 [2014]; Matter of
Rodriguez v Fischer, 120 AD3d 855, 856 [2014]; see also 7 NYCRR
270.2 [B] [14] [xv]; 270.3 [b] [2]).

      Contrary to petitioner's contentions, the misbehavior
report, which was read into the record, was sufficiently detailed
to give him notice of the charges to enable him to prepare a
defense (see Matter of Maletta v Amoia, 122 AD3d 962, 963 [2014];
Matter of Booker v Fischer, 102 AD3d 1045, 1046 [2013]), and it
was not improper for the investigating correction officer to use
the date that he wrote the misbehavior report as the incident
date because of the then-ongoing nature of the investigation (see
Matter of Blake v Goord, 35 AD3d 1016, 1017 [2006]; Matter of
Kornegay v Goord, 21 AD3d 1236, 1236-1237 [2005]). Petitioner's
remaining contentions, including his claim that the Hearing
Officer did not inform him until the end of the hearing that
confidential testimony had been taken, are either unpreserved for
our review or have been examined and found to be lacking in
merit.

      Lahtinen, J.P., Garry, Egan Jr., Lynch and Clark, JJ.,
concur.
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      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
