Kearney v. Fischer

51 A.D.3d 1185, 856 N.Y.S.2d 740

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 2008
• Status: Published

Opinion

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.

During a routine cell bar check, an altered keyboard was confiscated from petitioner and secured in the facility’s contraband room. Based upon confidential information that was thereafter obtained, the keyboard was X-rayed and then taken apart, revealing two homemade plexiglás weapons which had been hidden inside. As a result, petitioner was charged in a misbehavior report with possession of weapons and smuggling. At the conclusion of the ensuing tier III disciplinary hearing, petitioner was found guilty of both charges. That determination was affirmed upon administrative appeal and petitioner thereafter commenced this CPLR article 78 proceeding.

We confirm. Substantial evidence in the form of the misbehavior report and testimony adduced at the hearing supports the determination of guilt (see Matter of Wilson v Goord, 47 AD3d [2008]). Petitioner’s claim that the weapons were “planted” inside the keyboard by correction officers after it had been confiscated from his cell, along with his retaliation defense, created credibility issues for resolution by the Hearing Officer (see Matter of Pulliam v Goord, 45 AD3d 1158, 1158 [2007]). Furthermore, contrary to petitioner’s assertion, the Hearing Officer was not required to independently assess the credibility of the confidential information which prompted the search of the keyboard inasmuch as it was not considered in determining petitioner’s guilt (see Matter of Davis v Selsky, 270 AD2d 548, 548 [2000]).

Cardona, EJ., Mercure, Rose, Lahtinen and Stein, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.