| Matter of Lopez v Fischer |
| 2012 NY Slip Op 00436 [91 AD3d 1223] |
| Jnury 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of Marceline Lopez, Petitioner, v Brian Fischer, asCommissioner of Corrections and Community Supervision,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco 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 respondent which found petitionerguilty of violating certain prison disciplinary rules.
After a search of petitioner's prison cell revealed two pieces of sharp metal taped to a plastictoothbrush handle, he was charged in a misbehavior report with possession of a weapon.Subsequently, a strip frisk of petitioner revealed two white tablets secreted in his sock that wereidentified as medication for which he did not have a prescription and, thus, he was charged in asecond misbehavior report with unauthorized medication and smuggling. At the tier IIIdisciplinary hearing that followed, petitioner pleaded guilty to unauthorized medication and wasfound guilty of the other two charges. That determination was administratively affirmed and thisCPLR article 78 proceeding ensued.
We confirm. Initially, inasmuch as petitioner pleaded guilty to the unauthorized medicationcharge, he is precluded from challenging the determination of guilt with respect thereto (see Matter of Cruz v Walsh, 87 AD3d1234, 1234 [2011]). As to the remaining charges, the misbehavior reports, supportingdocumentation and hearing testimony, including petitioner's admissions, provide substantialevidence to support the finding of guilt (see Matter of Cole v [*2]New York StateDept. of Correctional Servs., 87 AD3d 1243, 1243 [2011]; Matter of Lamere v Fischer, 87 AD3d768, 768 [2011]). "A reasonable inference of possession arises from the fact that the weaponwas found in an area within petitioner's control" (Matter of Hamilton v Fischer, 84 AD3d 1614 [2011] [citationsomitted]), even though his access was not exclusive (see Matter of Rogers v Bezio, 67 AD3d 1100, 1101 [2009]).Petitioner's contention that the charges were in retaliation for grievances he had filed presented acredibility issue to be resolved by the Hearing Officer (see Matter of White v Fischer, 87 AD3d 1249, 1250 [2011]; Matter of Kalwasinski v Fischer, 87AD3d 1187, 1188 [2011]). Finally, a review of the record demonstrates that the finding ofguilt was based upon the evidence adduced, rather than any alleged hearing officer bias (see Matter of Hardy v Smith, 87 AD3d779, 780 [2011]). Petitioner's remaining contentions are unpreserved for this Court's review.
Peters, J.P., Rose, Malone Jr., Stein and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.