Opinion
2013-04-25
In the Matter of James FISHER, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
James Fisher, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
James Fisher, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 which found petitioner guilty of violating a prison disciplinary rule.
During a search of petitioner's cube, which he did not share with other inmates, a correction officer found a homemade shank taped to the underside of petitioner's bed. As a result, he was charged in a misbehavior report with possessing a weapon. Following a tier III disciplinary hearing, petitioner was found guilty of the charge and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and related documentation, together with the testimony of the correction officer who authorized the search, provide substantial evidence supporting the determination of guilt ( see Matter of Alache v. Fischer, 91 A.D.3d 1240, 1241, 937 N.Y.S.2d 458 [2012];Matter of Hamilton v. Fischer, 84 A.D.3d 1614, 922 N.Y.S.2d 825 [2011] ). A reasonable inference of possession arises by virtue of the fact that the weapon was found in an area within petitioner's control even though he did not have exclusive access to his cube ( see Matter of Rogers v. Bezio, 67 A.D.3d 1100, 1101, 889 N.Y.S.2d 260 [2009];Matter of Griffin v. Selsky, 60 A.D.3d 1247, 1248, 878 N.Y.S.2d 204 [2009] ). While petitioner denied that the weapon was his and maintained that it had been planted in his cube, this presented a credibility issue for the Hearing Officer to resolve ( see Matter of Rogers v. Bezio, 67 A.D.3d at 1101, 889 N.Y.S.2d 260;Matter of Muller v. Fischer, 62 A.D.3d 1191, 1191, 881 N.Y.S.2d 188 [2009] ). In addition, we find no merit to petitioner's claim that the Hearing Officer failed to independently verify the credibility of the information contained in the anonymous notes leading to the search given that the determination of guilt was not based upon the contents of the notes, but rather upon the results of the search ( see Matter of Horne v. Fischer, 98 A.D.3d 788, 789, 949 N.Y.S.2d 814 [2012];Matter of Nimmons v. Fischer, 68 A.D.3d 1311, 890 N.Y.S.2d 202 [2009] ). Furthermore, upon reviewing the record, we find nothing to indicate that the Hearing Officer was biased or that the determination flowed from any alleged bias ( see Matter of Jackson v. Fischer, 98 A.D.3d 766, 767–768, 949 N.Y.S.2d 822 [2012];Matter of Sweet v. Poole, 48 A.D.3d 867, 868, 850 N.Y.S.2d 721 [2008] ). We have considered petitioner's many remaining claims and find them either unpreserved for our review or lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.