                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 23, 2016                     522114
________________________________

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


Calendar Date:   May 3, 2016

Before:   Peters, P.J., Lahtinen, Rose, Lynch and Devine, JJ.

                               __________


     Edward Baysden, Gowanda, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Arnold 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 a prison disciplinary rule.

      During a search of petitioner's prison cell, a correction
officer found a folded can lid with a cloth handle located inside
of petitioner's instrument case. As a result, petitioner was
charged in a misbehavior report with possessing a weapon.
Following a tier III disciplinary hearing, petitioner was found
guilty as charged. The penalty imposed was modified by
correction officials and the determination was later affirmed
upon administrative appeal. This CPLR article 78 proceeding
ensued.
                              -2-                  522114

      We confirm. The misbehavior report, unusual incident
report, photograph of the weapon and testimony of the correction
officer who conducted the search provide substantial evidence to
support the determination of guilt (see Matter of Burgos v Prack,
129 AD3d 1434, 1434 [2015]; Matter of Diaz v Prack, 127 AD3d
1489, 1490 [2015]). Contrary to petitioner's contention, the
hearing testimony does not establish that he was set up and, in
any event, such claim presented a credibility issue for the
Hearing Officer to resolve (see Matter of Gonzalez v Annucci, 122
AD3d 1203, 1204 [2014]). Petitioner's assertion that the search
of his cell was not carried out in compliance with Department of
Corrections and Community Supervision Directive No. 4910 is
unpreserved.

      Peters, P.J., Lahtinen, Rose, Lynch and Devine, JJ.,
concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
