Rogers v. Bezio

Nov 5, 2009
Versions:67 A.D.3d 1100
889 N.Y.S.2d 260

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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following information received from a confidential source, a search of petitioner‘s cell was conducted, pursuant to which, among other things, a metal shank was discovered hidden in his mattress. As a result, petitioner was charged with possessing a weapon, an altered item and stolen property. Following a tier III disciplinary hearing, during which petitioner pleaded guilty to possessing an altered item, he was found guilty of all charges. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, along with the testimony of the correction officer who performed the search and a picture of the seized weapon, provide substantial evidence to support the determination (see Matter of Muller v Fischer, 62 AD3d 1191, 1191 [2009]; Matter of Amadeo v Goord, 49 AD3d 1121, 1121-1122 [2008]). Although petitioner did not have exclusive access to his cell, a reasonable inference of possession arises inasmuch as the weapon was found in an area within his control (see Matter of Muller v Fischer, 62 AD3d at 1191; Matter of Amadeo v Goord, 49 AD3d at 1122). Petitioner‘s contention that the weapon was placed there by another inmate presented a credibility issue for resolution by the Hearing Officer (see Matter of Muller v Fischer, 62 AD3d at 1191; Matter of Griffin v Selsky, 60 AD3d 1247, 1248 [2009]). Finally, any irregularities with regard to the confidential information received by the Hearing Officer were irrelevant inasmuch as it was not considered in determining petitioner‘s guilt (see Matter of Shepherd v Fischer, 63 AD3d 1473 [2009]; Matter of Kearney v Fischer, 51 AD3d 1185, 1186 [2008]).

Petitioner‘s remaining contentions have been examined and found to be either unpreserved or without merit.

Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur.

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