Opinion
2013-11-27
In the Matter of Gen AGUIRRE, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Gen Aguirre, Stormville, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Gen Aguirre, Stormville, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, SPAIN and GARRY, JJ.
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 which found petitioner guilty of violating a prison disciplinary rule.
After an anonymous note indicated that a weapon could be found in petitioner's cell, a search of his cell revealed a three-inch razor-type weapon taped to the underside of a desk. Petitioner was served with a misbehavior report charging him with possession of contraband. Following a tier III disciplinary hearing, petitioner was found guilty of that charge and the determination was affirmed administratively. He thereafter commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, the testimony of the correction officers present at the search and the supporting documentation provide substantial evidence to support the determination ( see Matter of Fisher v. Fischer, 105 A.D.3d 1286, 1286, 963 N.Y.S.2d 606 [2013]; Matter of Shorter v. Prack, 100 A.D.3d 1178, 1179, 953 N.Y.S.2d 414 [2012] ). Although petitioner's access to the cell was not exclusive, a reasonable inference of possession arose by virtue of the fact that the weapon was found in an area within his control ( see Matter of Fisher v. Fischer, 105 A.D.3d at 1286, 963 N.Y.S.2d 606; Matter of Lopez v. Fischer, 91 A.D.3d 1223, 1224, 937 N.Y.S.2d 451 [2012] ). Petitioner's denial that he owned the weapon and the claimed inconsistencies in the officers' testimony raised credibility issues to be resolved by the Hearing Officer ( see Matter of Bethune v. Fischer, 108 A.D.3d 966, 967, 968 N.Y.S.2d 813 [2013], lv. denied22 N.Y.3d 855, 979 N.Y.S.2d 561, 2 N.E.3d 929, 2013 N.Y. Slip Op. 91627, 2013 WL 6065934 [Nov. 19, 2013]; Matter of Glod v. Fischer, 98 A.D.3d 1173, 1174, 950 N.Y.S.2d 820 [2012] ). Additionally, there was no requirement that the Hearing Officer independently assess the veracity of the anonymous note that led to the search, inasmuch as the determination of guilt was based on the contraband discovered, rather than the contents of the note itself ( see Matter of Fisher v. Fischer, 105 A.D.3d at 1286, 963 N.Y.S.2d 606; Matter of Horne v. Fischer, 98 A.D.3d 788, 789, 949 N.Y.S.2d 814 [2012] ).
Lastly, we reject petitioner's contention that he was denied his right to call a witness, i.e., a third unnamed correction officer he alleges was involved in the search. Both officers present at the search and the commanding officer denied that another officer participated, the relevant log book entry revealed no third officer on duty, and a fellow inmate, who petitioner claimed could verify the officer's presence, refused to testify. Under the circumstances, the Hearing Officer made reasonable efforts to identify and locate petitioner's requested witness ( see Matter of Fowler v. Fischer, 106 A.D.3d 1344, 1345, 965 N.Y.S.2d 254 [2013], lv. denied21 N.Y.3d 865, 974 N.Y.S.2d 37, 996 N.E.2d 918 [2013]; Matter of Jones v. Bellamy, 80 A.D.3d 1029, 1030, 915 N.Y.S.2d 383 [2011] ). Petitioner's remaining arguments have been considered and have been found to be unavailing.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.