| Matter of Muller v Fischer |
| 2009 NY Slip Op 03983 [62 AD3d 1191] |
| May 21, 2009 |
| Appellate Division, Third Department |
| In the Matter of Ra'Shaun Muller, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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 foundpetitioner guilty of violating certain prison disciplinary rules.
After a search of his cube disclosed a bent can lid underneath his locker, petitioner wascharged in a misbehavior report with violating the prison disciplinary rules that prohibitpossessing a weapon and possessing an altered item. Following a tier III disciplinary hearing,petitioner was found guilty of both charges and a penalty was imposed. Petitioner'sadministrative appeal proved unsuccessful, prompting him to commence this CPLR article 78proceeding to challenge the determination of guilt.
We confirm. The misbehavior report, together with the testimony of the authoring correctionofficer who conducted the search of petitioner's cube, and the physical evidence, constitutesubstantial evidence of petitioner's guilt (see Matter of Kearney v Fischer, 51 AD3d 1185 [2008]; Matter of Abdullah v Selsky, 45 AD3d1072, 1073 [2007]). Although petitioner's access to his cube may not have been exclusive,"a reasonable inference of possession arises from the fact that the weapon was discovered. . . in an area within petitioner's control" (Matter of Amadeo v Goord, 49 AD3d 1121, 1122 [2008]; see Matter of Parrilla v Selsky, 32AD3d 1086, 1087 [2006], lv denied 8 NY3d 803 [2007]). Petitioner's assertion thatthe item had been planted [*2]in his cube, as well as his claimthat the misbehavior report was written in retaliation for a grievance he had filed, presentedcredibility issues for the Hearing Officer to resolve (see Matter of Belot v Selsky, 56 AD3d 911, 912 [2008]; Matter of Wilson v Goord, 47 AD3d1102, 1103 [2008]). Finally, even assuming that confidential information did prompt theunderlying search, the Hearing Officer was not required to assess the credibility of suchinformation because "the misbehavior report and determination of guilt resulted from thediscovery of the weapon and not from the confidential information" itself and the confidentialinformant was not relied upon in considering petitioner's guilt (Matter of Parilla, 32AD3d at 1087; see Matter of Kearney v Fischer, 51 AD3d at 1186).
Cardona, P.J., Spain, Rose, Kane and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.