| Matter of Rogers v Bezio |
| 2009 NY Slip Op 07906 [67 AD3d 1100] |
| November 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of Juan Rogers, Petitioner, v Norman R. Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
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 information received from a confidential source, a search of petitioner's cell wasconducted, pursuant to which, among other things, a metal shank was discovered hidden in hismattress. As a result, petitioner was charged with possessing a weapon, an altered item andstolen property. Following a tier III disciplinary hearing, during which petitioner pleaded guiltyto possessing an altered item, he was found guilty of all charges. Following an unsuccessfuladministrative appeal, petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, along with the testimony of the correction officer whoperformed the search and a picture of the seized weapon, provide substantial evidence to supportthe determination (see Matter of Mullerv Fischer, 62 AD3d 1191, 1191 [2009]; Matter of Amadeo v Goord, 49 AD3d 1121, 1121-1122 [2008]).Although petitioner did not have exclusive access to his cell, a reasonable inference ofpossession arises inasmuch as the weapon was found in an area within his control (see Matterof Muller v Fischer, 62 AD3d at 1191; Matter of Amadeo v Goord, 49 AD3d at1122). Petitioner's contention that the weapon was placed there by another inmate presented acredibility issue for resolution by the Hearing Officer (see Matter of Muller v Fischer, 62AD3d at 1191; Matter of Griffin vSelsky, 60 AD3d 1247, 1248 [2009]). [*2]Finally, anyirregularities with regard to the confidential information received by the Hearing Officer wereirrelevant inasmuch as it was not considered in determining petitioner's guilt (see Matter of Shepherd v Fischer, 63AD3d 1473 [2009]; Matter ofKearney v Fischer, 51 AD3d 1185, 1186 [2008]).
Petitioner's remaining contentions have been examined and found to be either unpreserved orwithout merit.
Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.