| Matter of Sweet v Poole |
| 2008 NY Slip Op 01270 [48 AD3d 867] |
| February 14, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jack Sweet, Petitioner, v Thomas M. Poole, asSuperintendent of Five Points Correctional Facility, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
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.
Petitioner, a prison inmate, was seen leaving a letter, promoting a takeover of the facility andthreatening harm to the correction officers, on a window sill in a certain corridor of the facility. Asearch of his cell was thereafter conducted, resulting in the recovery of, among other things, acarbon copy of the subject letter, homemade alcohol and a lock inside a sock with a knot tied atone end. Petitioner was ultimately found guilty following a tier III disciplinary hearing of rioting,demonstration, making threats, alcohol possession and weapon possession. That determinationwas affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. Substantial evidence consisting of the detailed misbehavior report, relateddocumentation and testimony adduced at the hearing, including the confidential informationconsidered by the Hearing Officer in camera, supports the determination of guilt (see Matterof Serrano v Goord, 266 AD2d 661, 661 [1999], lv denied 94 NY2d 762 [2000]).Petitioner's [*2]denial of the allegations and insistence thatcertain items found in his cell were not his created credibility issues for resolution by the HearingOfficer (see Matter of Callender vSelsky, 41 AD3d 1065, 1066 [2007]). As for petitioner's assertion that he cannot beguilty of possessing the items because other inmates had access to his cell, a reasonable inferenceof possession arises by virtue of the items having been recovered from an area within his control(see Matter of Vento v Goord, 41AD3d 1123, 1123 [2007]). Contrary to petitioner's argument, there is no indication in therecord that the Hearing Officer was biased or that the determination flowed from any purportedbias (see Matter of Lewis v Goord,43 AD3d 1259, 1259 [2007]). We have examined petitioner's remaining contentions,including his claim that the hearing was untimely, and, to the extent preserved, find them to beunpersuasive.
Mercure, J.P., Spain, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.