| Matter of Nimmons v Fischer |
| 2009 NY Slip Op 09123 [68 AD3d 1311] |
| December 10, 2009 |
| Appellate Division, Third Department |
| In the Matter of Robert Nimmons, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff 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 foundpetitioner guilty of violating certain prison disciplinary rules.
After receiving a confidential tip that petitioner was carrying a weapon, a correction officerapproached petitioner and observed him carrying a wad of tissue paper in his hand. Petitionerinitially refused the officer's orders to drop the tissue paper, but eventually complied and asearch of the paper revealed a razor blade wrapped in tape and covered by a sheath. Petitionerwas charged in a misbehavior report with possessing a weapon and failing to obey a direct order.Following a tier III disciplinary hearing, petitioner was found guilty of both charges. Thisdetermination was affirmed on administrative appeal, prompting petitioner to commence thisCPLR article 78 proceeding.
We confirm. The misbehavior report, unusual incident report and the hearing testimony ofthe correction officers involved in the incident provide substantial evidence supporting thedetermination of guilt (see Matter ofPage v Fischer, 64 AD3d 1067, 1067 [2009]; Matter of Griffin v Goord, 43 AD3d 591, 591 [2007]). Contrary topetitioner's contention, it was not necessary for the Hearing Officer to independently assess thecredibility of the confidential informant inasmuch as the determination of guilt was based uponevidence independent of the [*2]confidential information (see Matter of Kirby v Leclaire, 47AD3d 1174, 1175 [2008]; Matterof Hemphill v Selsky, 26 AD3d 548, 549 [2006]; Matter of Folk v Goord, 307AD2d 500, 501 [2003]). Finally, petitioner's contention that he was "set up" by correctionofficers presented a credibility issue for the Hearing Officer to resolve (Matter of Vines v Goord, 19 AD3d951, 953 [2005]; Matter of Toomer v Goord, 290 AD2d 860 [2002]).
Mercure, J.P., Spain, Kane, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.