| Matter of Figueroa v Selsky |
| 2008 NY Slip Op 02530 [49 AD3d 1059] |
| March 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Angel Figueroa, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet 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.
Following a search of his cell, petitioner was charged in a misbehavior report withpossession of a weapon, possession of money and possession of contraband. At the ensuing tierIII disciplinary hearing, petitioner pleaded guilty to possession of contraband insofar as thecharge pertained to a radio and a translator for which he did not have a permit. He pleaded notguilty to the remaining charges. At the conclusion thereof, the Hearing Officer found petitionerguilty of all charges and a penalty was imposed. Following an unsuccessful administrativeappeal, petitioner commenced this CPLR article 78 proceeding challenging the determination.
Petitioner contends that the determination of guilt is not supported by substantial evidence inthe record as a whole. We cannot agree. Preliminarily, petitioner's plea of guilty to possession ofcontraband forecloses his challenge to that part of the determination sustaining that charge (see Matter of Spencer v Goord, 38AD3d 1028 [2007], lv denied 9 NY3d 802 [2007]). As to the remaining charges, thetestimony of the correction officer who conducted the search [*2]was sufficient to demonstrate the presence of razor-like weaponsand a $50 bill secreted in the false bottom of a thermos that, according to the correction officer,petitioner admitted was his. Moreover, the fact that the thermos was located in an area overwhich petitioner had control supports the inference that it belonged to him (see Matter of Ameen v Selsky, 25AD3d 1059 [2006]). To the extent that petitioner denied ownership or possession of thethermos, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Carter v Goord, 45 AD3d1077 [2007]). Finally, even accepting petitioner's claim that the Hearing Officer failed toindependently assess the reliability and credibility of the confidential information provided, therecord contains independent evidence to sustain the determination (compare Matter ofHolmes v Senkowski, 238 AD2d 629, 630 [1997] [testimony and misbehavior report basedsolely upon confidential information]). Therefore, we find no reason to disturb it.
Spain, J.P., Lahtinen, Kane, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.