State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 10, 2016 520781 

________________________________

In the Matter of SHANE HYATT,

Petitioner,

v

MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting

Commissioner of Corrections

and Community Supervision,

Respondent.

________________________________

Calendar Date: January 19, 2016

Before: Peters, P.J., Lynch, Devine and Clark, JJ.

__________

Shane Hyatt, Malone, 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 Franklin County)

to review a determination of respondent finding petitioner guilty

of violating certain prison disciplinary rules.

During a search of petitioner's cell, a correction officer

found written documents pertaining to an unauthorized

organization as well as handwritten directions on how to build a

"stink bomb." As a result, he was charged in a misbehavior

report with possessing written material relating to an

unauthorized organization and possessing material describing the

construction of an explosive device. He was found guilty of the

charges following a tier III disciplinary hearing and the

determination was later affirmed on administrative appeal. This
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CPLR article 78 proceeding ensued.1

Initially, we reject petitioner's claim that the

misbehavior report lacked sufficient detail, inasmuch as it set

forth the rule violations at issue as well as the conduct

providing the basis for the charges, and thereby afforded

petitioner adequate notice to enable him to prepare a defense

(see Matter of Walker v Fischer, 107 AD3d 1273, 1273-1274 [2013];

Matter of Toro v Fischer, 104 AD3d 1036, 1037 [2013]). On a

related note, petitioner maintains that he was unaware of rule

105.14 prohibiting the possession of unauthorized organizational

material (see 7 NYCRR 270.2 [B] [6] [v]) because it did not

appear as rule 105.14 in the rule book that he was given. We are

not persuaded given that this rule was revised and renumbered in

2008, at which time a memorandum was provided to inmates,

including presumably petitioner, advising of the change (see

Matter of Gittens v Fischer, 100 AD3d 1121, 1122 [2012]; Matter

of Watson v Fischer, 94 AD3d 1317, 1318 [2012]). Furthermore,

there was no violation of petitioner's right to call witnesses

insofar as the testimony of the editor and publisher of the

magazine from which he allegedly obtained the instructions on how

to build a "stink bomb" was irrelevant to the charges (see Matter

of Omaro v Prack, 129 AD3d 1394, 1395 [2015]; Matter of Boyd v

Fischer, 108 AD3d 995, 996 [2013]). We have considered

petitioner's remaining arguments and find them to be lacking in

merit.

Peters, P.J., Lynch, Devine and Clark, JJ., concur.

1 Although the proceeding should not have been transferred

due to the failure of the verified petition to raise the issue of

substantial evidence, we 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]).
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ADJUDGED that the determination is confirmed, without

costs, and petition dismissed. 

ENTER:

Robert D. Mayberger

Clerk of the Court