| Matter of Bosquet v Bezio |
| 2010 NY Slip Op 00609 [69 AD3d 1257] |
| January 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of Joseph Bosquet, Petitioner, v Norman R. Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Rose, 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 the Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Following an incident in which petitioner engaged in a physical altercation in his cube withanother inmate just prior to the count, he was charged in a misbehavior report with engaging inviolent conduct, fighting, assaulting an inmate, possessing a weapon, creating a disturbance,refusing a direct order and delaying the count. Following a tier III disciplinary hearing, duringwhich petitioner pleaded guilty to creating a disturbance, fighting and delaying the count,petitioner was found guilty of all charges except assaulting an inmate. An unsuccessfuladministrative appeal ensued and petitioner, thereafter, commenced this CPLR article 78proceeding.
We confirm. With regard to the charge of possessing a weapon, we find that the misbehaviorreport, along with the testimony of the two correction officers present at the scene, [*2]provide substantial evidence to support the determination ofpetitioner's guilt (see Matter of Stone vFischer, 62 AD3d 1064, 1065 [2009]; Matter of Adams v Selsky, 54 AD3d 477, 478 [2008], lvdenied 11 NY3d 710 [2008]). Specifically, pursuant to 7 NYCRR 270.2 (B) (14) (i), "anyitem that may be classified as a weapon or dangerous instrument by description, use orappearance" is prohibited, and a "dangerous instrument" is further defined by the rule as "anyinstrument, article or substance which, under the circumstances in which it is used, attempted tobe used or threatened to be used, is readily capable of causing bodily harm." Thus, testimony bythe correction officer that he witnessed petitioner striking another inmate with a state-issuedpadlock clenched in his right fist supports the determination of guilt (see Matter of Tinnirello v Selsky, 51AD3d 1238, 1239 [2008]). The testimony of petitioner and his inmate witnesses that he wasnot holding the padlock during the fight presented a credibility issue to be resolved by theHearing Officer (see Matter of Hale vSelsky, 57 AD3d 1136, 1137 [2008], appeal dismissed 12 NY3d 776 [2009]; Matter of Dozier v Selsky, 54 AD3d1074, 1075 [2008]). Contrary to petitioner's contention that he could not be found to haveviolated 7 NYCRR 270.2 (B) (14) (i) because the item involved was not contraband, we note thatthe requirement that the item classified as a dangerous instrument be contraband was eliminatedby an amendment to that rule which became effective on February 1, 2006. Accordingly,petitioner's reliance on our holding in Matter of Avery v Goord (49 AD3d 993, 994 [2008]) isunavailing.
With regard to the charge of fighting, we note that petitioner's admission of guilt during thehearing precludes any challenge to the determination as to that charge (see Matter of Davis v Fischer, 64AD3d 847, 848 [2009]; Matter ofTayler v Selsky, 49 AD3d 1060 [2008]). Similarly, addressing petitioner's challenge tothe finding that he refused a direct order based on his contention that he did not hear the order,we note that petitioner did not raise this argument during the hearing when it could have beenaddressed and, therefore, it is unpreserved for our review (see Matter of Perez v Fischer, 62 AD3d 1104, 1105 [2009]; Matter of Christian v Goord, 20 AD3d862, 863 [2005]).
We have examined petitioner's remaining contentions and, to the extent preserved, find themto be without merit.
Peters, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.