                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 13, 2014                   518442
________________________________

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


Calendar Date:   September 16, 2014

Before:   Lahtinen, J.P., Garry, Egan Jr., Lynch and Devine, JJ.

                             __________


     Nigel Spencer, Auburn, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff 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 which found petitioner
guilty of violating certain prison disciplinary rules.

      After an inmate was attacked with an edged weapon, an
eyewitness confidentially identified petitioner as the aggressor.
As a result, petitioner was charged in a misbehavior report with
violations of various prison disciplinary rules. The initial
determination was reversed upon administrative review but,
following a rehearing, petitioner was found not guilty of
creating a disturbance but guilty of engaging in violent conduct,
assault and weapons possession. That determination was affirmed
upon administrative appeal, prompting this CPLR article 78
proceeding.
                              -2-                  518442

      We confirm. The misbehavior report and confidential
information considered by the Hearing Officer, including the
testimony of the correction sergeant who spoke to the eyewitness
and authored the misbehavior report, provide substantial evidence
to support the determination of guilt (see Matter of Walker v
Fischer, 113 AD3d 977, 977 [2014], lv denied 23 NY3d 905 [2014];
Matter of Smythe v Fischer, 102 AD3d 1039, 1040 [2013]).
Contrary to petitioner's further argument, "the Hearing Officer
conducted a proper inquiry to ascertain the credibility and
reliability of the information provided by the confidential
source by interviewing the correction sergeant who spoke with
this individual" (Matter of Smythe v Fischer, 102 AD3d at 1040;
see Matter of Williams v Fischer, 18 NY3d 888, 890 [2012]). The
victim's contradictory testimony that petitioner was not the
attacker created a credibility issue for the Hearing Officer to
resolve (see Matter of Watson v Fischer, 108 AD3d 1006, 1007
[2013]). Petitioner's remaining contentions, to the extent they
are preserved for our review, have been considered and found to
lack merit.

      Lahtinen, J.P., Garry, Egan Jr., Lynch and Devine, JJ.,
concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
