| Matter of Kearney v Fischer |
| 2008 NY Slip Op 04258 [51 AD3d 1185] |
| May 8, 2008 |
| Appellate Division, Third Department |
| In the Matter of Thomas A. Kearney, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent which found petitionerguilty of violating certain prison disciplinary rules.
During a routine cell bar check, an altered keyboard was confiscated from petitioner andsecured in the facility's contraband room. Based upon confidential information that was thereafterobtained, the keyboard was X-rayed and then taken apart, revealing two homemade plexiglasweapons which had been hidden inside. As a result, petitioner was charged in a misbehaviorreport with possession of weapons and smuggling. At the conclusion of the ensuing tier IIIdisciplinary hearing, petitioner was found guilty of both charges. That determination wasaffirmed upon administrative appeal and petitioner thereafter commenced this CPLR article 78proceeding.
We confirm. Substantial evidence in the form of the misbehavior report and testimonyadduced at the hearing supports the determination of guilt (see Matter of Wilson v Goord, 47 AD3d 1102, 1102-1103 [2008]).Petitioner's claim that the weapons were "planted" inside the keyboard by correction officers afterit had been confiscated from his cell, along with his retaliation defense, created credibility issuesfor resolution by the Hearing Officer (see Matter of Pulliam v Goord, 45 AD3d 1158, 1158 [2007]).Furthermore, contrary to petitioner's assertion, [*2]the HearingOfficer was not required to independently assess the credibility of the confidential informationwhich prompted the search of the keyboard inasmuch as it was not considered in determiningpetitioner's guilt (see Matter of Davis v Selsky, 270 AD2d 548, 548 [2000]).
Cardona, P.J., Mercure, Rose, Lahtinen and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.