| Matter of Alache v Fischer |
| 2012 NY Slip Op 00445 [91 AD3d 1240] |
| Jnury 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of David Alache, Petitioner, v Brian M.Fischer, as Commissioner of Corrections and Community Supervison,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 respondent which found petitionerguilty of violating a prison disciplinary rule.
A correction officer received an anonymous note indicating that petitioner had a weapon inhis locker. The officer received authorization to search petitioner's cell and found a pen with ahalf set of tweezers attached to the end inside the locker under some magazines. As a result,petitioner was charged in a misbehavior report with possessing a weapon. At the conclusion of atier III disciplinary hearing, petitioner was found guilty of the charge, and the determination wasaffirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. Substantial evidence, consisting of the misbehavior report and relateddocumentation, as well as the testimony of the correction officer who conducted the search andsecured the weapon, supports the determination of guilt (see Matter of Hamilton v Fischer, 84 AD3d 1614 [2011]; Matter of Parra v Fischer, 76 AD3d724, 725 [2010], lv denied 15 NY3d 714 [2010]). While petitioner maintained thatdisgruntled inmates who were displeased with his enforcement of alcohol and substance abusetreatment rules planted the weapon in his unlocked locker while he was at work, this presented acredibility issue for the Hearing Officer to resolve (see Matter of Hamilton v Fischer, 84AD3d at 1614; Matter of Wade vArtus, 59 AD3d 793, 794 [2009], appeal dismissed 12 NY3d 872 [2009]).Notably, even though other inmates may have had access to petitioner's locker, a reasonableinference of possession arises by virtue of the fact that the weapon was [*2]found in an area within petitioner's control (see Matter of Sweet v Poole, 48 AD3d867, 868 [2008]; Matter ofCummings v Goord, 10 AD3d 748, 749 [2004]). Furthermore, we find no merit topetitioner's claim that the chain of custody of the weapon was not properly established inasmuchas the correction officer who secured and photographed the weapon explained that thediscrepancy in information contained in the misbehavior report and the contraband/evidencephotograph card was attributable to a mistake made by the sergeant who filled out the card (see Matter of McGowan v Fischer, 88AD3d 1038, 1039 [2011]). Petitioner's remaining contentions are either unpreserved for ourreview or are lacking in merit.
Mercure, A.P.J., Spain, Malone Jr., McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.