| Matter of Mariani v Selsky |
| 2008 NY Slip Op 00398 [47 AD3d 1146] |
| January 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Joseph Mariani, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff 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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
After a can top and a container of black pepper were found in his cube, petitioner wascharged in a misbehavior report with possession of a weapon and possession of contraband.Following a tier III disciplinary hearing he was found guilty of these charges. That determinationwas confirmed upon administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. The determination of guilt is supported by substantial evidence in the form ofthe misbehavior report, together with petitioner's admissions that the items in question were inhis cube (see Matter of Amaker vSelsky, 42 AD3d 827, 827 [2007]; Matter of Barham v Goord, 42 AD3d 607, 608 [2007]). Petitioner'sassertion that he cannot be guilty of the weapon possession charge because he never intended touse the can top as a weapon is unavailing (see Matter of Victory v Coughlin, 143 AD2d455, 457 [1988]). Petitioner's remaining contentions, including his claims that he was improperlydenied the right to present witness testimony and the Hearing Officer was not appropriatelydesignated to conduct the hearing, are unpreserved for our [*2]review.
Mercure, J.P., Spain, Carpinello, Lahtinen and Kane, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.