Opinion
519030
12-24-2014
In the Matter of Brandon NIEVES, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Brandon Nieves, Brocton, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Brandon Nieves, Brocton, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: LAHTINEN, J.P., GARRY, EGAN JR., LYNCH and DEVINE, JJ.
Opinion Proceeding pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, entered in Franklin County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.
A search of petitioner's cell disclosed a sharpened can lid taped to the inner lip of a locker in his double bunk cell, in which he was the sole occupant. As a result, petitioner was charged in a misbehavior report with possession of a weapon. Following a tier III hearing, petitioner was found guilty of that charge, and the determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and testimony of its author, who conducted the cell search, provide substantial evidence to support the determination (see Matter of Aguirre v. Fischer, 111 A.D.3d 1219, 1220, 975 N.Y.S.2d 814 [2013] ). Petitioner was the sole occupant of the cell with presumably exclusive access to the locker and, even if his access was not exclusive, “[a] reasonable inference of possession arises by virtue of the fact that the weapon was found in an area within [his] control” (Matter of Fisher v. Fischer, 105 A.D.3d 1286, 1286, 963 N.Y.S.2d 606 [2013] ; see Matter of Johnson v. Fischer, 109 A.D.3d 1070, 1071, 971 N.Y.S.2d 590 [2013] ). Petitioner's claims that the locker and personal items inside it did not belong to him, and that the locker had been occupied by another inmate until five days earlier, presented credibility issues for the Hearing Officer to resolve (see Matter of Aguirre v. Fischer, 111 A.D.3d at 1220, 975 N.Y.S.2d 814 ).
With regard to petitioner's contention that the misbehavior report was defective because it was not endorsed by the officer who assisted in the search of the cell, petitioner did not demonstrate that the assisting officer had “personal knowledge of the facts” (7 NYCRR 251–3.1 [b] ), petitioner did not request that the assisting officer be called as a witness and no prejudice is established by the lack of that officer's endorsement (see Matter of Sorrentino v. Fischer, 101 A.D.3d 1210, 1211, 955 N.Y.S.2d 290 [2012], lv. denied 20 N.Y.3d 862, 2013 WL 1197877 [2013] ). Further, while “a Hearing Officer must consider an inmate's mental condition in rendering a determination when the inmate's mental state is at issue” (Matter of Siao–Pao v. Selsky, 274 A.D.2d 698, 699, 711 N.Y.S.2d 189 [2000], lv. denied 95 N.Y.2d 767, 717 N.Y.S.2d 547, 740 N.E.2d 653 [2000] ; see Matter of Huggins v. Coughlin, 76 N.Y.2d 904, 905, 561 N.Y.S.2d 910, 563 N.E.2d 281 [1990] ), petitioner did not raise his mental health as a defense to the charge (see Matter of Ferguson v. Fischer, 107 A.D.3d 1272, 1273, 967 N.Y.S.2d 253 [2013] ; Matter of Joseph v. LaClair, 79 A.D.3d 1496, 1496, 912 N.Y.S.2d 464 [2010] ), and there is no indication that his mental health was relevant to the charge. Finally, respondent's answer was timely filed and petitioner's remaining claims were not raised at the hearing or upon the administrative appeal and, as such, are not preserved for our review.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.