                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 17, 2016                    520560
________________________________

In the Matter of COREY DAVIS,
                    Petitioner,
      v

ANTHONY J. ANNUCCI, as                      MEMORANDUM AND JUDGMENT
   Acting Commissioner of
   Corrections and Community
   Supervision,
                    Respondent.
________________________________


Calendar Date:   January 19, 2016

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

                             __________


      Michael Cassidy, Prisoners' Legal Services of New York,
Plattsburgh, for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Martin A.
Hotvet of counsel), for respondent.

                             __________


      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Franklin County)
to review a determination of respondent finding petitioner guilty
of violating certain prison disciplinary rules.

      Following an assault on an inmate in a prison bathroom by
several inmates, petitioner was charged in a misbehavior report
with assaulting an inmate, violent conduct, creating a
disturbance, possessing a weapon and gang activity. At the tier
III disciplinary hearing, confidential testimony was submitted in
camera positively identifying petitioner as one of the attackers
and related confidential documents were received into evidence.
Petitioner was found guilty of all charges except the gang
                              -2-                520560

activity charge and a penalty was imposed. The determination was
upheld on administrative appeal and petitioner thereafter
commenced this CPLR article 78 proceeding.

      The misbehavior report together with the confidential
testimony and documents considered by the Hearing Officer in
camera provide substantial evidence to support the finding of
guilt (see Matter of McCain v Fischer, 104 AD3d 1009, 1009
[2013]). Contrary to petitioner's contentions, we are satisfied
that the Hearing Officer was able to independently assess the
credibility and reliability of the confidential information given
the details provided regarding the attack, as well as the in
camera testimony of one of the confidential sources who the
Hearing Officer concluded had been truthful and believable (see
Matter or Clark v Annucci, 128 AD3d 1254, 1254-1255 [2015];
Matter of Rosario v Annucci, 127 AD3d 1477, 1478 [2015]).
Petitioner's denial that he was involved in the attack created a
credibility issue to be resolved by the Hearing Officer (see
Matter of Perkins v Annucci, 129 AD3d 1421, 1421 [2015]).
Moreover, the charges of which he was found guilty were not
dependent upon the gang activity charge, which the Hearing
Officer found had not been substantiated; there was nothing
inconsistent about finding him guilty of participating in the
attack and possessing a weapon but not guilty of gang activity
(see Matter of Jackson v Goord, 8 AD3d 852, 853 [2004]). We have
considered petitioner's remaining contentions and find that they
lack merit.

     Garry, J.P., Egan Jr., Rose and Lynch, JJ., concur.
                              -3-                  520560

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
