Opinion
11-10-2016
Alex M. Vega, Elmira, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Alex M. Vega, Elmira, 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 certain prison disciplinary rules.Petitioner was charged in a misbehavior report with possession of an altered item and possession of a weapon after a search of his cell uncovered a folded can lid with a taped handle hidden in the cell's upper door track. According to the misbehavior report, the weapon was accessible from inside petitioner's cell. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. That determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
Even though the weapon was accessible from outside petitioner's cell, it was nevertheless found in an area within petitioner's control, giving rise to an inference that the weapon belonged to him (see Matter of Jimenez v. Fischer, 87 A.D.3d 771, 771, 927 N.Y.S.2d 804 [2011] ; Matter of McEwen v. Goord, 32 A.D.3d 1116, 1117, 821 N.Y.S.2d 477 [2006] ). This inference, together with the misbehavior report and hearing testimony, provide substantial evidence to support the determination of guilt (see Matter of McEwen v. Goord, 32 A.D.3d at 1117, 821 N.Y.S.2d 477 ; Matter of Caldwell v. Coughlin, 148 A.D.2d 905, 905, 539 N.Y.S.2d 533 [1989] ). To the extent that petitioner challenges the reliability of the confidential information that prompted the search of his cell, the determination of guilt was based upon the discovery of the weapon, rendering the confidential information inconsequential (see e.g. Matter of Shufelt v. Annucci, 138 A.D.3d 1336, 1337–1338, 31 N.Y.S.3d 243 [2016] ; Matter of Lacey v. Annucci, 138 A.D.3d 1329, 1330, 28 N.Y.S.3d 637 [2016] ). Petitioner's remaining contentions have been reviewed and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
EGAN JR., J.P., LYNCH, ROSE, DEVINE and CLARK, JJ., concur.