Opinion
11-10-2016
In the Matter of David Morris HILL, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.
David Morris Hill, Cape Vincent, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondents.
David Morris Hill, Cape Vincent, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure 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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
After correction officials received an anonymous note disclosing that petitioner had a weapon in his cell, they conducted a search and recovered a sharpened piece of metal that had been fashioned into a cutting instrument inside a glove from under petitioner's large locker. As a result, petitioner was charged in a misbehavior report with possessing a weapon and possessing an altered item. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, related documentation and testimony of the correction sergeant who ordered the cell search provide substantial evidence supporting the determination of guilt (see Matter of Sawyer v. Annucci, 140 A.D.3d 1499, 1500, 35 N.Y.S.3d 511 [2016] ; Matter of Burgos v. Prack, 129 A.D.3d 1434, 1434, 10 N.Y.S.3d 763 [2015] ). Although petitioner challenges the reliability of the confidential information contained in the anonymous note that prompted the cell search, the note was not necessary to support the determination of guilt, which was based upon the actual discovery of the weapon (see Matter of Shufelt v. Annucci, 138 A.D.3d 1336, 1337–1338, 31 N.Y.S.3d 243 [2016] ; Matter of Horne v. Fischer, 98 A.D.3d 788, 789, 949 N.Y.S.2d 814 [2012] ). Moreover, notwithstanding petitioner's lack of exclusive access to the area where the weapon was found, the reasonable inference of possession arises by virtue of petitioner's control over this area of his cell (see Matter of Morales v. Fischer, 119 A.D.3d 1298, 1299, 989 N.Y.S.2d 921 [2014] ; Matter of Cox v. Fischer, 114 A.D.3d 973, 974, 979 N.Y.S.2d 862 [2014], lv. dismissed 24 N.Y.3d 941, 994 N.Y.S.2d 41, 18 N.E.3d 741 [2014] ). His testimony that the weapon did not belong to him presented a credibility issue for the Hearing Officer to resolve (see Matter of Cox v. Fischer, 114 A.D.3d at 974, 979 N.Y.S.2d 862 ; Matter of Aguirre v. Fischer, 111 A.D.3d 1219, 1220, 975 N.Y.S.2d 814 [2013] ). Furthermore, upon reviewing both the misbehavior report and the unusual incident report, we find no merit to petitioner's claim that these reports are conflicting. We have considered petitioner's remaining contentions, to the extent that they are properly before us, and find them to be unavailing.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCARTHY, J.P., LYNCH, ROSE, DEVINE and AARONS, JJ., concur.