                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 21, 2016                    521586
________________________________

In the Matter of RICHARD LACEY,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   February 23, 2016

Before:   Lahtinen, J.P., McCarthy, Rose and Devine, JJ.

                             __________


     Richard Lacey, Auburn, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco 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 finding petitioner guilty of
violating certain prison disciplinary rules.

      Petitioner was charged in a misbehavior report with
possession of a weapon and possession of an altered item after a
search of his cell uncovered a shank fashioned out of a
toothbrush, paper clip and shoelace. Following a tier III
disciplinary hearing, petitioner was found guilty of both charges
and that determination was affirmed upon administrative appeal.
This CPLR article 78 proceeding ensued.

      Contrary to petitioner's claim, the matter was properly
transferred to this Court as the challenges in the petition raise
                              -2-                  521586

a question of substantial evidence (see CPLR 7804 [g]). To that
end, the misbehavior report, picture of the weapon, confidential
documentation and inferences to be drawn therefrom provide
substantial evidence to support the determination of guilt (see
Matter of Diaz v Prack, 127 AD3d 1489, 1490 [2015]; Matter of
Crook v Fischer, 91 AD3d 1076, 1076 [2012]). Petitioner's
contention that the weapon was planted created a credibility
issue for the Hearing Officer to resolve (see Matter of Johnson v
Fischer, 109 AD3d 1070, 1071 [2013]). Any confidential
information that prompted the search of petitioner's cell did not
need to be assessed by the Hearing Officer as it did not form the
basis for the determination of guilt (see Matter of Douglas v
Fischer, 126 AD3d 1244, 1245 [2015], lv denied 26 NY3d 904
[2015]; Matter of Garcia v Fischer, 308 AD2d 609, 610 [2003]) and
petitioner was not entitled to access the other confidential
information considered in connection with the charges (see Matter
of Hall v Fischer, 101 AD3d 1309, 1310 [2012]). We have reviewed
petitioner's remaining contentions and, to the extent that they
are preserved for our review, we find them to be without merit.

     Lahtinen, J.P., McCarthy, Rose and Devine, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
