| Matter of Johnson v Fischer |
| 2013 NY Slip Op 06056 [109 AD3d 1070] |
| September 26, 2013 |
| Appellate Division, Third Department |
| In the Matter of Lee Johnson, 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 theSupreme Court, entered in Albany County) to review a determination of respondentwhich found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with possessing aweapon, possessing an altered item, unauthorized exchange and improper use of a messhall utensil after a search of the locker in his cell produced a sharpened mess hall fork, apair of hair clippers belonging to a different inmate and a mess hall spoon. At theensuing tier III disciplinary hearing, petitioner pleaded guilty to the charges ofunauthorized exchange and improper use of a mess hall utensil in connection with hispossession of the hair clippers and the spoon, but denied that the sharpened forkbelonged to him, and pleaded not guilty to the remaining charges. Petitioner was foundguilty of all charges and the determination was affirmed on administrative review,prompting petitioner to commence this CPLR article 78 proceeding.
We confirm. Initially, to the extent that petitioner's arguments herein include thecharges to which he pleaded guilty, we note that his plea of guilty to the charges ofunauthorized exchange and improper use of a mess hall utensil precludes any suchchallenge (see Matter ofHernandez v Fischer, 101 AD3d 1306, 1306 [2012]).[*2]
With respect to the remaining charges ofpossessing a weapon and possessing an altered item, we conclude that the determinationof guilt is supported by substantial evidence, including the misbehavior report andhearing testimony (see Matter ofRodriguez v Fischer, 101 AD3d 1294, 1295 [2012]; Matter of Quezada v Fischer,85 AD3d 1462, 1462 [2011]). "Although petitioner did not have exclusive access tohis cell, a reasonable inference of possession arises inasmuch as the weapon was found inan area within his control" (Matter of Rogers v Bezio, 67 AD3d 1100, 1101 [2009][citation omitted]). Petitioner's claims that he did not know that the weapon was in hiscell and that it must have been planted presented a credibility issue for resolution by theHearing Officer (see Matter ofHarvey v Fischer, 94 AD3d 1303, 1303 [2012]; Matter of Griffin v Selsky, 60AD3d 1247, 1248 [2009]).
We also reject petitioner's claim that he was improperly denied his right to observethe search of his cell. Department of Corrections and Community Supervision DirectiveNo. 4910 (V) (C) (1) allows an inmate to observe a cell search when the inmate isremoved from the cell for the search, unless a determination is rendered that suchpresence constitutes a safety or security risk. Here, petitioner's own testimony indicatesthat the search began while he was away from his cell at work and, when he returned, hewas informed that a weapon had been found in his locker, and he was told to stand aside.Under these circumstances, we find no violation of the applicable directive (see Matter of Mitchell vFischer, 81 AD3d 1013, 1014 [2011]; Matter of Lopez v Selsky, 300AD2d 975, 975 [2002], lv denied 100 NY2d 509 [2003]; compare Matter of Mingo vChappius, 106 AD3d 1160, 1161 [2013]).
Finally, we have examined petitioner's remaining contentions, including his claim ofhearing officer bias and assertion that he was improperly denied a copy of the searchschedule used by correction officers on the day in question, and find them to be lackingin merit.
Peters, P.J., Stein, Garry and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.