MatterofStarksvLarkin

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: July 24, 2014 517847 ________________________________

In the Matter of HAROLD STARKS, Petitioner, v MEMORANDUM AND JUDGMENT

ROLAND LARKIN, as Superintendent of Eastern Correctional Facility, Respondent. ________________________________

Calendar Date: June 9, 2014 Before: Stein, J.P., Garry, Rose, Lynch and Devine, JJ.

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Harold Starks, Napanoch, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

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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 certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with violating family reunion program procedures, damaging state property and tampering with a fire device. According to the report, an inspection of a trailer that had just been used by petitioner as part of the family reunion program revealed a hole in the bedroom door and a missing smoke detector. Following a tier III disciplinary hearing, petitioner was found not guilty of tampering with a fire device, but guilty of the remaining charge. He thereafter commenced this CPLR article 78 proceeding

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challenging the determination. Respondent moved to dismiss the petition and the motion was granted, in part, by Supreme Court as to certain claims. Following respondent's service of an answer to the remaining claims, Supreme Court transferred the proceeding to this Court for review.

We confirm. The misbehavior report and hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Sagardia v Chappius, 111 AD3d 1187, 1187 [2013]; Matter of Green v Taylor, 108 AD3d 960, 960-961 [2013]). Petitioner's remaining contentions, including that he was improperly denied the right to call certain inmate witnesses and that he received ineffective employee assistance, have been reviewed and are either unpersuasive or unpreserved for our review.

Stein, J.P., Garry, Rose, Lynch and Devine, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court