| Matter of Trisvan v Fischer |
| 2010 NY Slip Op 01861 [71 AD3d 1253] |
| March 11, 2010 |
| Appellate Division, Third Department |
| In the Matter of Frederic Trisvan, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1]
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.
During a search of the cellblock where petitioner was confined, a facility plumber foundthree pieces of a toothbrush secreted in an air vent behind petitioner's cell. All of the pieces hadbeen sharpened and two had metal melted onto the ends. As a result of this discovery, petitionerwas charged in a misbehavior report with violating prison disciplinary rules prohibiting inmatesfrom possessing weapons or altered items. Following a tier III disciplinary hearing, petitionerwas found guilty of the charges. After the determination was affirmed on administrative appeal,this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony presented at the hearing,provide substantial evidence supporting the determination of guilt (see Matter of Fuentes v Fischer, 56AD3d 919, 920 [2008]; Matter ofFews v Goord, 54 AD3d 1073, 1074 [2008]). While petitioner claims that the itemswere not his and were placed there by someone else, the reasonable inference of possessionarises from the testimony establishing that they were found in an area within petitioner's control(see Matter of Hammond v Selsky,28 AD3d 1000, 1000 [2006]; Matter of Ameen v Selsky, 25 AD3d 1059 [2006]). In view of this,we find no reason to disturb respondent's determination.[*2]
Peters, J.P., Lahtinen, Kavanagh, Stein and Garry, JJ.,concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.