Calendar Date: April 3, 2018Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Aarons, JJ.__________Joe Quiroz, Sonyea, petitioner pro se.Barbara D. Underwood, Attorney General, Albany (Marcus J.Mastracco of counsel), for respondent.__________Proceeding pursuant to CPLR article 78 (transferred to thisCourt by order of the Supreme Court, entered in Albany County) toreview a determination of the Commissioner of Corrections andCommunity Supervision finding petitioner guilty of violatingcertain prison disciplinary rules.As the result of an authorized mail watch, a letter writtenby petitioner containing gang-related references was interceptedand confiscated. As a result, petitioner was charged in amisbehavior report with possessing gang-related material andviolating facility correspondence procedures. Following a tierIII disciplinary hearing, he was found guilty as charged. Thatdetermination was affirmed on administrative appeal, and thisCPLR article 78 proceeding ensued.“Preliminarily, although petitioner reached his maximumexpiration date and has been discharged from custody, thisproceeding is not moot because petitioner is entitled to have aninstitutional record free from improperly obtained findings ofdisciplinary rule violations” (Matter of Bornstorff v Bezio, 73AD3d 1397, 1397 [2010] [internal quotation marks and citationomitted]; see Matter of Pena v Goord, 263 AD2d 690, 690-691[1999]; Matter of Walker v Senkowski, 260 AD2d 830, 831 [1999]).As to the merits, substantial evidence, consisting of themisbehavior report, testimony adduced at the hearing anddocumentary evidence, supports the determination of guilt (seeMatter of Gonzalez v Annucci, 149 AD3d 1455, 1455 [2017]; Matterof Doyle v Prack, 115 AD3d 1110, 1111 [2014], lv denied 23 NY3d907 [2014]; Matter of Harvey v Bradt, 81 AD3d 1003, 1003 [2011]).The inmate grievance supervisor, who is trained in identifyinggang-related material, testified that certain phrases in theletter referred to, among other things, the top and localleadership of a certain gang and that the five-pointed starsymbol found in the letter represented the five pillars of thegang. Although petitioner contends that the references in theletter were to biblical references and were not gang-related,this presented a credibility issue for the Hearing Officer toresolve (see Matter of Harvey v Bradt, 81 AD3d at 1003; Matter ofMoore v Fischer, 76 AD3d 737, 737 [2010]; Matter of Glover vFischer, 68 AD3d 1404, 1404 [2009]).Contrary to petitioner’s contention, the misbehavior reportprovided sufficient information to place him on notice of thecharges and afford him an opportunity to prepare a defense (see 7NYCRR 251-3.1 [c]; Matter of Williams v Fischer, 93 AD3d 1051,1052 [2012]). We also reject petitioner’s related claim that hedid not have adequate notice of the charges because he was notserved with a copy of the misbehavior report at least 24 hoursprior to the start of the hearing. Upon petitioner’s objectionat the start of the hearing, the Hearing Officer twice adjournedthe hearing for a total of five days to allow petitioner to bere-served with a copy of the misbehavior report and to providehim with several days to prepare a defense. Under thesecircumstances, we find that petitioner has failed to demonstratethat he was prejudiced by the alleged error and that he wasprovided with sufficient notice of the charges to enable him toprepare a defense (see Matter of McClain v Venettozzi, 146 AD3d1264, 1265 [2017]; Matter of McMaster v Annucci, 138 AD3d 1289,1290 [2016], lv denied 28 NY3d 902 [2016]). We have examinedpetitioner’s remaining procedural contentions, including hisclaim that the hearing was untimely, and find them to be eitherunpreserved or without merit.Egan Jr., J.P., Lynch, Clark, Mulvey and Aarons, JJ.,concur.ADJUDGED that the determination is confirmed, withoutcosts, and petition dismissed.ENTER:Robert D. MaybergerClerk of the Court
