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Supreme Court, Appellate Division, Third Department, New York.

IN RE: James WARREN, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: November 30, 2006

Before:  MERCURE, J.P., PETERS, CARPINELLO, MUGGLIN and KANE, JJ. James Warren, Auburn, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Peter H. Schiff 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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with possessing contraband and altered items after three makeshift weapons that were made from state pens and sharpened pieces of flat metal were found in his cell.   He was found guilty of the charges following a tier III disciplinary hearing.   The determination was affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm.   The misbehavior report, together with the items retrieved from petitioner's cell, constitute substantial evidence supporting the determination of guilt (see e.g. Matter of Ramirez v. Goord, 32 A.D.3d 601, 601, 818 N.Y.S.2d 867 [2006];  Matter of Morales v. Goord, 290 A.D.2d 790, 791, 736 N.Y.S.2d 494 [2002] ).   Petitioner's remaining contentions, including his claim that he was improperly denied the opportunity to call witnesses, have not been preserved for our review due to his failure to raise them at the hearing (see Matter of Burgess v. Goord, 30 A.D.3d 877, 878, 816 N.Y.S.2d 766 [2006] ).

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

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