Opinion
528854
11-07-2019
In the Matter of Vincent DOWLING, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Vincent Dowling, Malone, petitioner pro se. Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Vincent Dowling, Malone, petitioner pro se.
Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Devine and Aarons, JJ.
MEMORANDUM AND JUDGMENT Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
After a suspicion-based search of petitioner's cube (that he alone occupied) revealed a metal can lid fashioned into a weapon, petitioner was charged in a misbehavior report with possessing a weapon and possessing an altered item. Following a tier III disciplinary hearing, petitioner was found guilty of the charges and a penalty was imposed. The determination was affirmed upon administrative appeal, but petitioner received a discretionary reduction of his penalty. Petitioner then commenced this CPLR article 78 proceeding to challenge the determination.
We confirm. The misbehavior report and the testimony of its author, who indicated that he found the weapon under the left rear corner of the large locker located in petitioner's cube, constitute 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 Muller v. Fischer, 62 A.D.3d 1191, 1191, 881 N.Y.S.2d 188 [2009] ; Matter of Parrilla v. Selsky, 32 A.D.3d 1086, 1087, 820 N.Y.S.2d 863 [2006], lv denied 8 N.Y.3d 803, 830 N.Y.S.2d 700, 862 N.E.2d 792 [2007] ; see generally Matter of McBride v. Annucci, 142 A.D.3d 1218, 1219, 37 N.Y.S.3d 638 [2016] ). "Although other inmates had access to the area where the [weapon was] found, a reasonable inference of possession arises where, as here, the area where the contraband was discovered is within petitioner's control" ( Matter of Cooperider v. Annucci, 128 A.D.3d 1266, 1266, 8 N.Y.S.3d 501 [2015] [citations omitted]; see Matter of Fisher v. Fischer, 105 A.D.3d 1286, 1286, 963 N.Y.S.2d 606 [2013] ; Matter of Crook v. Fischer, 91 A.D.3d 1076, 1076, 937 N.Y.S.2d 379 [2012] ; compare Matter of Dushock v. Prack, 98 A.D.3d 777, 778, 949 N.Y.S.2d 802 [2012] ). Contrary to petitioner's assertion, the record does not reflect that the Hearing Officer relied upon any confidential information in reaching his determination and, therefore, "an assessment of the credibility of the information that prompted the search" was not required ( Matter of Gomez v. New York State Dept. of Corr. & Community Supervision, 147 A.D.3d 1140, 1141, 46 N.Y.S.3d 296 [2017] ; see Matter of Ortiz v. Annucci, 160 A.D.3d 1192, 1193, 71 N.Y.S.3d 391 [2018] ; Matter of Boitschenko v. Annucci, 156 A.D.3d 1066, 1066–1067, 65 N.Y.S.3d 488 [2017] ). Petitioner's denial of the charges, as well as his suggestion that he was "being set up," presented credibility issues for the Hearing Officer to resolve (see Matter of Gomez v. New York State Dept. of Corr. & Community Supervision, 147 A.D.3d at 1141, 46 N.Y.S.3d 296 ; Matter of Fisher v. Fischer, 105 A.D.3d at 1286, 963 N.Y.S.2d 606 ; Matter of Muller v. Fischer, 62 A.D.3d at 1191, 881 N.Y.S.2d 188 ). Petitioner's remaining arguments, to the extent that they are properly before us, have been examined and found to be lacking in merit.
Garry, P.J., Egan Jr., Devine and Aarons, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.