| Matter of Tinnirello v Selsky |
| 2008 NY Slip Op 04418 [51 AD3d 1238] |
| May 15, 2008 |
| Appellate Division, Third Department |
| In the Matter of Joseph Tinnirello, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs 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.
Petitioner, a prison inmate, was observed by a correction officer using a "bent-over can lid"to cut up onions and then attempting to hide it when the officer approached him. As a result,petitioner was charged in a misbehavior report with violating the prison disciplinary rulesprohibiting possession of a weapon and possession of an altered item. Petitioner pleaded guilty topossessing an altered item and, following a tier III disciplinary hearing, was found guilty ofpossessing a weapon. The determination was affirmed upon administrative appeal and this CPLRarticle 78 proceeding ensued.
We confirm. Petitioner alleges that the portion of the determination finding him guilty ofpossession of a weapon is not supported by substantial evidence. Contrary to this allegation,however, the misbehavior report and petitioner's admission at the hearing that he did possess thecan lid satisfy that standard (see Matterof Mariani v Selsky, 47 AD3d 1146, 1146 [2008]). We are unpersuaded by petitioner'sassertion that he cannot be guilty of weapon possession because he was using the can lid toprepare food and not as a weapon. The relevant rule prohibits inmates [*2]from possessing "any item that may be classified as a weapon ordangerous instrument by description, use or appearance" (7 NYCRR 270.2 [B] [14] [i]; seeMatter of Mallen v Hearing Officer, Great Meadow Correctional Facility, 304 AD2d 879,879 [2003]). Given that the prohibition against possession is not limited by the inmate's intent,"petitioner's exculpatory explanation for possessing the item does not preclude a finding that thealtered item could be classified as a weapon in a prison setting" (Matter of Diaz v Goord, 14 AD3d978, 979 [2005], lv denied 5 NY3d 701 [2005]). Petitioner's remaining contentions,including his challenge to the disciplinary rule in question as impermissibly vague, have beenexamined and found to be without merit.
Spain, J.P., Carpinello, Rose, Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.