State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 523093 

________________________________

In the Matter of DERREL AUSTIN, 

Petitioner,

v

MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting 

Commissioner of Corrections 

and Community Supervision, 

Respondent.

________________________________

Calendar Date: October 25, 2016

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

__________

Derrel Austin, Romulus, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (William E.

Storrs 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. 

Following an investigation that revealed petitioner's

involvement in the supply and distribution of synthetic

marihuana, or K-2, within the prison facility to five other

inmates, he was charged in a misbehavior report with smuggling,

selling an intoxicant and possession of a dangerous substance. 

Following a tier III disciplinary hearing, petitioner was found

guilty of smuggling and selling an intoxicant. The determination

was affirmed on administrative appeal, and this CPLR article 78

proceeding ensued.
-2- 523093 

We confirm. The misbehavior report and hearing testimony,

as well as the confidential testimony submitted for in camera

review, provide substantial evidence to support the determination

that petitioner was guilty of smuggling and selling an intoxicant

(see Matter of Ellison v Annucci, 142 AD3d 1233, 1234 [2016];

Matter of Ralands v Prack, 131 AD3d 1334, 1335 [2015]). Although

petitioner denied that he smuggled or sold an intoxicant, these

exculpatory claims presented credibility issues for the Hearing

Officer to resolve (see Matter of Gano v Venettozzi, 142 AD3d

1240, 1241 [2016]; Matter of Robinson v Annucci, 122 AD3d 1055,

1055 [2014]). We are also unpersuaded by petitioner's assertion

that synthetic marihuana is not an intoxicant and that he was

therefore improperly charged with use of an intoxicant (see

Matter of Roman v Prack, 133 AD3d 959, 960 [2015]; Matter of

Ralands v Prack, 131 AD3d at 1335; compare Matter of Burt v

Annucci, 131 AD3d 751, 752 [2015]). 

Turning to the balance of petitioner's contentions, we find

that the misbehavior report was sufficiently detailed to provide

him with adequate notice of the charges so as to enable him to

prepare a defense (see 7 NYCRR 251-3.1 [c] [1], [4]; Matter of

Bailey v Annucci, 142 AD3d 1195, 1196 [2016]; Matter of Zimmerman

v Annucci, 139 AD3d 1205, 1206 [2016]). We further reject

petitioner's argument that he was denied adequate employee

assistance given that the Hearing Officer remedied any purported

deficiencies and petitioner has not demonstrated that he was

prejudiced (see Matter of McMaster v Annucci, 138 AD3d 1289, 1290

[2016], lv denied 28 NY3d 902 [2016]; Matter of Pooler v Fischer,

107 AD3d 1256, 1257 [2013], lv denied 22 NY3d 855 [2013]). 

Finally, upon reviewing the record, including the confidential

testimony, we find no basis to conclude that the Hearing Officer

was biased or that the determination flowed from any alleged bias

(see Matter of Bailey v Annucci, 142 AD3d at 1196; Matter of

Linares v Fischer, 119 AD3d 1300, 1301 [2014], lv denied 24 NY3d

909 [2014]). We have considered petitioner's remaining

contentions and find them to be without merit.

McCarthy, J.P., Egan Jr., Lynch, Rose and Clark, JJ.,

concur.
-3- 523093 

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court