Opinion
2011-08-4
In the Matter of Raymond JIMENEZ, Petitioner,v.Brian FISCHER, as Commissioner of Correctional Services, et al., Respondents.
Raymond Jimenez, Auburn, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.
During an inspection of petitioner's cell door track, a correction officer discovered a sharpened, flat piece of metal with a plastic handle. Petitioner was charged in a misbehavior report with possession of a weapon. Following a tier III disciplinary hearing, petitioner was found guilty of the charge and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Even if, as petitioner contends, the area in which the weapon was found could be accessed from outside his cell, it was an area within his control and occupied by him for seven months, giving rise to an inference that the weapon belonged to him ( see Matter of Rogers v. Bezio, 67 A.D.3d 1100, 1101, 889 N.Y.S.2d 260 [2009]; Matter of Hammond v. Selsky, 28 A.D.3d 1000, 1000, 812 N.Y.S.2d 720 [2006]; Matter of Bunting v. Goord, 25 A.D.3d 845, 845–846, 809 N.Y.S.2d 588 [2006]; Matter of Shackleford v. Goord, 3 A.D.3d 622, 623, 769 N.Y.S.2d 910 [2004] ). This inference, the misbehavior report and the testimony of the authoring correction officer provide substantial evidence to support the determination of guilt ( see Matter of Hammond v. Selsky, 28 A.D.3d at 1000, 812 N.Y.S.2d 720; Matter of Bunting v. Goord, 25 A.D.3d at 846, 809 N.Y.S.2d 588; Matter of Shackleford v. Goord, 3 A.D.3d at 623, 769 N.Y.S.2d 910). Petitioner's assertion that the weapon could have been placed in the door track by another inmate or may have already been in the door track at the time he moved into the cell presented a credibility issue for resolution by the Hearing Officer ( see *805 Matter of Rogers v. Bezio, 67 A.D.3d at 1101, 889 N.Y.S.2d 260; Matter of Wade v. Artus, 59 A.D.3d 793, 794, 873 N.Y.S.2d 754 [2009], appeal dismissed 12 N.Y.3d 872, 882 N.Y.S.2d 680, 910 N.E.2d 429 [2009] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.