| Matter of Fuentes v Fischer |
| 2008 NY Slip Op 08578 [56 AD3d 919] |
| November 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jesus Fuentes, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Peters, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondentCommissioner of Correctional Services which found petitioner guilty of violating a prisondisciplinary rule.
A search of petitioner's prison cell resulted in the discovery of a sharpened aluminum can lidhidden in his locker and a sharpened 2½-inch piece of metal hidden in a container of dentalfloss. Petitioner was charged in a misbehavior report with possession of a weapon and was foundguilty following a tier III disciplinary hearing. Upon administrative review, that determinationwas affirmed prompting this CPLR article 78 proceeding.
We confirm. The determination of guilt is supported by substantial evidence including themisbehavior report and hearing testimony (see Matter of Kearney v Fischer, 51 AD3d 1185, 1185 [2008]).Petitioner's contention that the can lid was used to slice vegetables and the other metal object wasused to repair his eyeglasses and wristwatch did not preclude a finding that the objects weredangerous weapons, as the prohibition against possessing the altered items is not [*2]limited by an inmate's intent (see Matter of Tinnirello v Selsky, 51 AD3d 1238, 1239 [2008]).Moreover, petitioner's claim that the disciplinary rule prohibiting the possession of weapons(see 7 NYCRR 270.2 [B] [14] [i]) is unconstitutionally vague is without merit (seeMatter of Tinnirello v Selsky, 51 AD3d at 1239).
With regard to petitioner's claim that he was denied adequate employee assistance, the recordreflects that any defects in the provided assistance were cured by the Hearing Officer at thedisciplinary hearing (see Matter ofJenkins v Selsky, 51 AD3d 1239, 1240 [2008]). Despite petitioner's contention to thecontrary, he was not entitled to the right to counsel at his disciplinary hearing (see Matter ofShaffer v Hoke, 174 AD2d 787, 788 [1991]) nor were the Miranda requirementsapplicable to the hearing and petitioner was informed that any statements he made could not beused against him in a criminal proceeding (see Matter of Arner v Warne, 54 AD2d 903,904 [1976]). Finally, as petitioner received an adequate reply to his request for documentspursuant to the Freedom of Information Law (see Public Officers Law art 6), we find hisrequest to compel disclosure moot (see Matter of Rattley v New York City Police Dept.,96 NY2d 873, 875 [2001]). We have examined petitioner's remaining contentions, including thatthe penalty imposed was harsh and excessive, and find them without merit.
Mercure, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.