| Matter of Daughtry v Bezio |
| 2011 NY Slip Op 04147 [84 AD3d 1623] |
| May 19, 2011 |
| Appellate Division, Third Department |
| In the Matter of Maurice Daughtry, Petitioner, v Norman Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
During a search of petitioner's cell, a correction officer found two ice pick-type weapons, onesecreted in the pilaster of the cell and the second secreted in the cell track. The officer also foundan altered pen and pencil. As a result, petitioner was charged in a misbehavior report withpossessing a weapon and possessing an altered item. He was found guilty of the charges at theconclusion of a tier III disciplinary hearing. The determination was later affirmed onadministrative appeal, resulting in this CPLR article 78 proceeding.
We confirm. The misbehavior report, together with the testimony of its author and the relateddocumentation, provide substantial evidence supporting the determination of guilt (see Matter of Bartley v Fischer, 73AD3d 1363, 1363-1364 [2010]; Matter of Cruz v Goord, 41 AD3d 1122, 1122-1123 [2007]; Matter of Ameen v Selsky, 25 AD3d1059 [2006]). The proof established that the items were found in an area within petitioner'scontrol thereby supporting the [*2]reasonable inference that theybelonged to him (see Matter of Trisvanv Fischer, 71 AD3d 1253, 1254 [2010]; Matter of Figueroa v Selsky, 49 AD3d 1059, 1059 [2008], lvdenied 10 NY3d 714 [2008]). Significantly, the correction officer who searched the areasstated that no other individual could have put the items in those locations without using specialtools of the type used by a locksmith, which he used to retrieve the items. Although petitionermaintained that the items were not his, this presented a credibility issue for the Hearing Officer toresolve (see Matter of Sweet vPoole, 48 AD3d 867, 867-868 [2008]; Matter of Diaz v Goord, 26 AD3d 561, 562 [2006]). Lastly,petitioner's claim that he was not permitted to observe the search of his cell when the secondweapon was recovered has not been preserved for our review due to his failure to raise it at thehearing or on his administrative appeal (see Matter of Griffin v Selsky, 60 AD3d 1247, 1248 [2009]; Matter of Carter v Goord, 45 AD3d1077, 1078 [2007]).
Peters, J.P., Spain, Malone Jr., McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.