                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 21, 2016                    521705
________________________________

In the Matter of RYAN SHUFELT,
                    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., Garry, Devine and Clark, JJ.

                             __________


     Ryan Shufelt, Malone, 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 Franklin County)
to review a determination of respondent finding petitioner guilty
of violating certain prison disciplinary rules.

      Petitioner was charged in two misbehavior reports with
violating prison disciplinary rules for his conduct on the
evening of October 15, 2014. During a pat frisk by a correction
officer, two flat, sharpened metal objects, each measuring 10¼
inches long, were discovered in the boots that petitioner was
wearing, and he was charged in a misbehavior report with
possessing a weapon and smuggling. Later that night, while
petitioner was on contraband watch, he defecated and stamps in a
plastic bag were recovered, and he was charged in a second
misbehavior report with possession of authorized articles in an
                              -2-                521705

unauthorized area and smuggling. At the ensuing tier III
disciplinary hearing, petitioner pleaded guilty to the charges
contained in the second misbehavior report and was found guilty
of all of the charges. On administrative appeal, the
determination was upheld with a modified penalty. Petitioner
thereafter commenced this proceeding challenging the
determination.

      We confirm. Given that petitioner pleaded guilty to the
charges contained in the second misbehavior report, he forfeited
any challenge to the sufficiency of the evidence supporting the
determination of guilt of those charges (see Matter of Kim v
Annucci, 128 AD3d 1196, 1197 [2015]).1 With regard to
petitioner's challenge to the determination on the first
misbehavior report, we find that the testimony of its author who
found the weapons, as well as the documentary evidence,
photographs of the weapons and the misbehavior report, provide
substantial evidence to support the charges (see Matter of Matter
of Diaz v Prack, 127 AD3d 1489, 1490 [2015]; Matter of Smart v
Fischer, 122 AD3d 1023, 1023 [2014], lv denied 24 NY3d 916
[2015]). Petitioner's claim that he was unaware that the weapons
were in his boots presented a credibility issue for the Hearing
Officer to resolve (see Matter of Perkins v Annucci, 129 AD3d
1421, 1421 [2015]). Further, while petitioner preserved his
claim that the Hearing Officer failed to independently assess the
credibility of the confidential information that prompted the pat
frisk by raising it on his administrative appeal (see Matter of
Rivera v Commissioner of DOCS, 122 AD3d 1052, 1053 [2014]), it
lacks merit. The determination of guilt was based upon evidence
establishing that petitioner had secreted weapons in his boots,
rather that on the confidential information that led to the pat
frisk, obviating the need to assess the confidential information
(see Matter of Douglas v Fischer, 126 AD3d 1244, 1245 [2015], lv
denied 26 NY3d 904 [2015]; Matter of Horne v Fischer, 98 AD3d
788, 789 [2012]). Petitioner's remaining claims are either
unpreserved or lack merit.


    1
        In any event, he has abandoned any claims related to
those charges by not raising them in his brief (see Matter of
Staine v Fischer, 111 AD3d 999, 999 [2013]).
                              -3-                  521705

     Lahtinen, J.P., Garry, Devine and Clark, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
