Opinion
519360.
2015-04-23
In the Matter of Efraim DIAZ, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.
Peters, P.J., McCarthy, Lynch and Devine, JJ., concur.
Efraim Diaz, Coxsackie, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
Before: PETERS, P.J., McCARTHY, LYNCH and DEVINE, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.
During a search of petitioner's cell, a correction officer found, under the plastic shade of the cell light, a toothbrush with a can top melted on one end that was wrapped in a cloth lanyard. As a result, petitioner was charged in a misbehavior report with possession of a weapon. Following a tier III disciplinary hearing, petitioner was found guilty as charged. That determination was upheld upon administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. The detailed misbehavior report, unusual incident report, photograph of the weapon, documentary evidence and hearing testimony provide substantial evidence to support the determination of guilt ( see Matter of Nieves v. Annucci, 123 A.D.3d 1368, 1368, 997 N.Y.S.2d 847 [2014]; Matter of Smart v. Fischer, 122 A.D.3d 1023, 1023, 994 N.Y.S.2d 735 [2014], lv. denied24 N.Y.3d 916, 2015 WL 688251 [2015] ). In addition, contrary to petitioner's assertion, the absence of evidence demonstrating that his cell was searched or inspected prior to his arrival “does not necessarily negate the inference” that he possessed the weapon ( Matter of Green v. Fischer, 98 A.D.3d 771, 771–772, 948 N.Y.S.2d 921 [2012]; see Matter of Fong v. Goord, 36 A.D.3d 1099, 1100, 827 N.Y.S.2d 364 [2007] ).
Petitioner's remaining contentions, including his assertion that he was denied adequate assistance, have been examined and found to be lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.