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


Decided: September 21, 2006

Before:  MERCURE, J.P., CREW III, PETERS, SPAIN and LAHTINEN, JJ. Raymond Stolpinski, Coxsackie, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), for respondents.

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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, an inmate, was charged in a misbehavior report with violating the prison disciplinary rule against weapon possession after a search of his cell revealed a six-inch drywall screw attached to a handle made of tape under his bed.   Following a tier III disciplinary hearing, petitioner was found guilty of the charge and the determination was affirmed on administrative appeal.   This CPLR article 78 proceeding by petitioner ensued.

We confirm.   The detailed misbehavior report and testimony of the authoring correction officer provide substantial evidence to support the determination of guilt (see Matter of Hammond v. Selsky, 28 A.D.3d 1000, 1000, 812 N.Y.S.2d 720 [2006];  Matter of Bunting v. Goord, 25 A.D.3d 845, 846, 809 N.Y.S.2d 588 [2006] ).   Petitioner's claim that the weapon was not his and had been planted raised a credibility issue that the Hearing Officer was entitled to resolve against him (see Matter of Ameen v. Selsky, 25 A.D.3d 1059, 1059, 807 N.Y.S.2d 318 [2006] ).   In addition, the Hearing Officer was not required to assess the reliability of the confidential information that resulted in the search inasmuch as the determination of guilt was based upon independent evidence that the weapon was discovered in an area under petitioner's control (see Matter of Johnson v. Goord, 27 A.D.3d 859, 860, 810 N.Y.S.2d 255 [2006];  Matter of Hemphill v. Selsky, 26 A.D.3d 548, 549, 808 N.Y.S.2d 503 [2006] ).   Finally, although the search of petitioner's cell was conducted in his absence, it was made in accordance with Department of Correctional Services Directive No. 4910(V)(C)(1) (formerly No. 4910[IV][C] [1] ) since petitioner was not removed from his cell in order to facilitate the search (see Matter of Thomas v. Selsky, 23 A.D.3d 868, 869, 804 N.Y.S.2d 148 [2005] ). Petitioner's remaining claim that the misbehavior report did not satisfy the relevant regulatory requirements has been reviewed and found to be without merit.

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

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