Opinion
04-21-2016
In the Matter of Robert CARELOCK, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Robert Carelock, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Robert Carelock, Comstock, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
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 finding petitioner guilty of violating a prison disciplinary rule.
Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of possessing a weapon after a search of his cell revealed a flat steel-like weapon secreted under a small locker in his cell. Contrary to petitioner's contention, the misbehavior report, weapon, unusual incident report, related confidential documentation, testimony at the hearing and the inferences to be drawn therefrom provide substantial evidence to support the determination of guilt (see Matter of Johnson v. Fischer, 109 A.D.3d 1070, 1071, 971 N.Y.S.2d 590 [2013] ; Matter of Alston v. Goord, 4 A.D.3d 708, 709, 771 N.Y.S.2d 919 [2004] ). We are unpersuaded by petitioner's assertion that he was denied due process by being removed from the area during the search of his cell, inasmuch as the sergeant who authorized the cell search testified that he made the determination that, based upon the information received regarding the presence of a weapon in petitioner's cell, petitioner was removed for safety reasons (see Matter of Gomez v. Fischer, 101 A.D.3d 1195, 1196, 955 N.Y.S.2d 671 [2012] ; Matter of Cody v. Fischer, 84 A.D.3d 1651, 1651, 923 N.Y.S.2d 910 [2011] ; Matter of Lara v. Dubray, 52 A.D.3d 1143, 1144, 862 N.Y.S.2d 389 [2008] ). Petitioner's remaining contentions are unpreserved for our review.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., McCARTHY, LYNCH and DEVINE, JJ., concur.