| Matter of Fews v Goord |
| 2008 NY Slip Op 06757 [54 AD3d 1073] |
| September 11, 2008 |
| Appellate Division, Third Department |
| In the Matter of Hafani Fews, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, 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 respondent which found petitionerguilty of violating certain prison disciplinary rules.
A search of petitioner's prison cell recovered gang-related letters and a steel-threaded rodwith tape at one end. As a result, petitioner was charged in a misbehavior report with possessionof unauthorized organizational materials and possession of a weapon. A tier III disciplinaryhearing ensued, at the conclusion of which petitioner was found guilty of both charges. Uponadministrative appeal, that determination was affirmed with a modified penalty. Petitioner thencommenced this CPLR article 78 proceeding seeking annulment. We now confirm.
To the extent that petitioner challenges the determination of guilt as being predicated oninsufficient evidence, we disagree. Petitioner pleaded guilty to possession of unauthorizedorganizational materials and, thus, cannot challenge the part of the determination sustaining thatcharge (see Matter of Figueroa vSelsky, 49 AD3d 1059, 1059 [2008], lv denied 10 NY3d 714 [2008]). As for theportion of the determination finding petitioner guilty of possession of a weapon, it is supportedby substantial evidence consisting of the detailed misbehavior report and corroborating hearingtestimony from the correction officers who conducted the cell search (see Matter of Shakur v Smith, 34AD3d 898, 899 [2006]). Petitioner's assertion that the weapon was [*2]not his and was planted by either a correction officer or member ofa rival gang created a credibility issue for resolution by the Hearing Officer (see Matter of Stolpinski v New York StateDept. of Correctional Servs., 32 AD3d 1091, 1091 [2006]). Petitioner's remainingcontentions have been examined and found to be unavailing.
Peters, J.P., Carpinello, Rose, Kane and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.