| Matter of Crook v Fischer |
| 2012 NY Slip Op 00156 [91 AD3d 1076] |
| January 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Ronald Crook, Petitioner, v Brian Fischer, asCommissioner of Corrections and Community Supervision,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 Columbia County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with possessing a tool andpossessing contraband after a search of a cube that he occupied alone revealed a pen with the tipof a screwdriver inserted in it and a SIM cellular telephone card taped to the bottom of a locker.Following a tier III disciplinary hearing, he was found guilty as charged. The determination wasupheld on administrative appeal, prompting this CPLR article 78 proceeding.
The detailed misbehavior report and the unusual incident report provide substantial evidencesupporting the determination of guilt (see Matter of James v Fischer, 67 AD3d 1163, 1163 [2009]; Matter of Johnson v Goord, 42 AD3d626, 627 [2007]). While petitioner pointed out that the cube could be accessed by otherinmates, "a reasonable inference of possession arises when contraband is found in an area withinan inmate's control" (Matter of Alston vGoord, 4 AD3d 708, 709 [2004]; see Matter of Lopez v Selsky, 28 AD3d 968, 968 [2006]).Petitioner's related contention that the pen and SIM card did not belong to him presented acredibility issue for the Hearing Officer to resolve (see Matter of Daughtry v Bezio, 84 AD3d 1623, 1624 [2011],[*2]lv denied 17 NY3d 709 [2011]; Matter of Griffin v Selsky, 60 AD3d1247, 1248 [2009]).
Although petitioner's remaining arguments are largely unpersuasive, we nevertheless agreewith him that the determination must be annulled insofar as he was found guilty of possessingcontraband. At the hearing, petitioner correctly asserted that an investigator had sought telephonecall records associated with the SIM card in order to determine its true owner. The investigatorsubsequently testified that he had been unable to subpoena the relevant records, but refused toelaborate further, claiming that the reasons were confidential. Notwithstanding petitioner'sobjections to this response—which left the record devoid of any explanation for theinability to subpoena the records—the Hearing Officer made no effort to substantiate this"bald" claim of confidentiality (Matter of Porter v Cuomo, 191 AD2d 852, 853 [1993]).Accordingly, remittal for a new hearing on the charge of possessing contraband is required(see id.; see also Matter of Hillard v Coughlin, 187 AD2d 136, 139-140 [1993],lv denied 82 NY2d 651 [1993]; cf. Matter of Sharpe v Coombe, 237 AD2d 980,981-982 [1997]).
Mercure, A.P.J., Peters, Rose, Malone Jr. and Garry, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof possessing contraband; matter remitted to respondent for further proceedings on that charge;and, as so modified, confirmed.