| Matter of Carter v Goord |
| 2007 NY Slip Op 08808 [45 AD3d 1077] |
| November 15, 2007 |
| Appellate Division, Third Department |
| In the Matter of Scott Carter, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Nancy A. Spiegel of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Ulster County) to review a determination of respondent which found petitionerguilty of violating a prison disciplinary rule.
During a random search of petitioner's cell, a correction officer discovered a sharpened pieceof metal approximately 7¼ inches long secreted behind a light fixture. As a result,petitioner was charged in a misbehavior report with possessing a weapon. He was found guiltyfollowing a tier III disciplinary hearing and the determination was affirmed on administrativeappeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the documentary evidence establishingthat petitioner's cell was searched prior to his occupancy and that no contraband was found,provided substantial evidence supporting the determination of guilt (see Matter of Daum v Goord, 27 AD3d858, 859 [2006]). The fact that the weapon was found in an area within petitioner's controlsupports the inference of possession (seeMatter of Ameen v Selsky, 25 AD3d 1059, 1059 [2006]). Although petitioner deniedthat the weapon belonged to him, this presented a credibility issue for the Hearing Officer toresolve (see Matter of Cummings vGoord, 10 AD3d 748, 749 [2004]). Finally, petitioner has not preserved his claim that hewas denied adequate prehearing assistance inasmuch as he did not object at the hearing (see Matter of Chaney v Selsky, 35AD3d 1109, 1110 [2006]; Matter of Lunney v Goord, 290 AD2d 687, 688 [2002]).[*2]
Mercure, J.P., Peters, Mugglin, Lahtinen and Kane, JJ.,concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.