                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 12, 2016                      521335
________________________________

In the Matter of MICHAEL ALLEN,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
DONALD VENETTOZZI, as Acting
   Director of Special Housing
   and Inmate Disciplinary
   Programs,
                    Respondent.
________________________________


Calendar Date:   March 29, 2016

Before:   Peters, P.J., McCarthy, Rose, Devine and Clark, JJ.

                             __________


     Michael Allen, Romulus, 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 finding petitioner guilty of violating a
prison disciplinary rule.

      During the course of a strip frisk, a correction officer
recovered a plexiglass shank from petitioner's right sock. As a
result, petitioner was charged in a misbehavior report with
possessing a weapon. Following a tier III disciplinary hearing,
he was found guilty of the charge and the determination was later
affirmed on administrative appeal. This CPLR article 78
                               -2-                521335

proceeding ensued.1

      We confirm. Initially, although the hearing transcript
discloses certain inaudible portions, the gaps are not so
significant as to preclude meaningful review and petitioner's
claim that large portions are either missing or inaccurate is
simply not substantiated (see Matter of Rizzuto v Eastman, 134
AD3d 1308, 1308 [2015]; Matter of Clark v Annucci, 128 AD3d 1254,
1255 [2015]). Moreover, we reject petitioner's assertion that he
was denied a videotape of the yard, given that it did not depict
the incident in question and was, therefore, irrelevant (see
Matter of Byrd v Fischer, 117 AD3d 1263, 1263 [2014]; Matter of
Cody v Goord, 17 AD3d 943, 944-945 [2005]). Furthermore, the
record discloses that the hearing was conducted in a fair and
impartial manner, and there is nothing to suggest that the
Hearing Officer was biased or that the determination flowed from
any alleged bias (see Matter of Paddyfote v Fischer, 118 AD3d
1240, 1241 [2014]; Matter of Harding v Prack, 118 AD3d 1231, 1232
[2014]). We have considered petitioner's remaining contentions,
including his claim that he was improperly denied the right to
call witnesses, including an unidentified investigator from the
Inspector General's office concerning petitioner's unresolved
grievances, and find them to be unavailing (see Matter of Tafari
v Fischer, 93 AD3d 1054, 1054-1055 [2012], lv dismissed 19 NY3d
1007 [2012]; compare Matter of Lopez v Fischer, 100 AD3d 1069,
1069 [2012]).

      Peters, P.J., McCarthy, Rose, Devine and Clark, JJ.,
concur.




     1
        Although the proceeding was improperly transferred due to
the failure of the verified petition to raise the issue of
substantial evidence, we nevertheless retain jurisdiction and
address petitioner's claims in the interest of judicial economy
(see Matter of Selah v LaValley, 117 AD3d 1261, 1261 n [2014]).
                              -3-                  521335

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
