| Matter of Hall v Fischer |
| 2011 NY Slip Op 06611 [87 AD3d 1235] |
| September 29, 2011 |
| Appellate Division, Third Department |
| In the Matter of Dionel Hall, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
While a correction officer was conducting a strip frisk of petitioner, petitioner told him thathe had marihuana secreted in his rectum. Petitioner then produced three small bundles wrappedin toilet paper which were subsequently tested and identified as marihuana. During that samesearch, petitioner also informed the correction officer that, prior to the commencement of thefrisk, he had swallowed a sharp piece of metal. Petitioner was escorted to the infirmary, where anX ray revealed what appeared to be "a piece of a razor blade" in his stomach. Although petitionerwas then placed on contraband watch, the foreign object appearing on the X ray was notrecovered. Petitioner was charged in a misbehavior report with possessing a weapon, possessingan altered item and smuggling. A second misbehavior report charged him with possession of acontrolled substance. At the ensuing tier III hearing, petitioner initially pleaded guilty to the drugpossession charge in the second misbehavior report. He called no witnesses at the hearing andwas ultimately found guilty of the three charges in the first misbehavior report. Hisadministrative appeal was unsuccessful and this CPLR article 78 proceeding followed.
We are unpersuaded by petitioner's challenge to the determination of guilt as to charges [*2]in the first misbehavior report.[FN*]The misbehavior report, combined with the X ray taken at the infirmary, provide substantialevidence supporting the determination. Although petitioner maintains that the determinationshould be annulled because no contraband was recovered as a result of the contraband watch (see e.g. Matter of Warren v Goord, 49AD3d 1099, 1100 [2008]), we do not agree. Here, not only did the Hearing Officer take intoaccount the X-ray evidence, but he also found credible the misbehavior report wherein thecorrection officer stated that petitioner told him he swallowed a sharp metallic item. Under thesecircumstances, we find no basis to disturb the determination of guilt (see Matter of Scott v Fischer, 75 AD3d962, 963 [2010]).
Finally, petitioner's claim that the Hearing Officer was biased against him is unpreserved forour review as a result of petitioner's failure to raise that issue in his administrative appeal (see Matter of Boyd v Fischer, 74 AD3d1679, 1679 [2010]).
Mercure, J.P., Rose, Lahtinen, Stein and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: Petitioner does not contest thefinding of guilt as to the second misbehavior report herein and, given his guilty plea, would beprecluded from such a challenge in any event (see Matter of Wilson v Kadien, 69 AD3d 1104, 1104 [2010]).