Opinion
2014-11-13
In the Matter of Pamela SMART, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Sophia Heller, Prisoners' Legal Services of New York, Albany, for petitioner. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Sophia Heller, Prisoners' Legal Services of New York, Albany, for petitioner. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., ROSE, EGAN JR., LYNCH and CLARK, 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.
During a search of petitioner's cell, correction officers discovered a knife with an eight-inch plastic blade used for cake cutting. Petitioner accordingly was charged in a misbehavior report with possession of a weapon and possession of contraband. Following a tier III disciplinary hearing, petitioner was found not guilty of possessing contraband but guilty of possessing a weapon. That determination was upheld upon administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, photograph of the knife and hearing testimony provide substantial evidence to support the determination of guilt ( see Matter of Mallen v. Hearing Officer, Great Meadow Correctional Facility, 304 A.D.2d 879, 879, 759 N.Y.S.2d 772 [2003] ). Notably, “[t]he scope of conduct covered by the standards of inmate behavior is broader than conduct subject to criminal sanctions under the Penal Law” ( People v. Vasquez, 89 N.Y.2d 521, 532, 655 N.Y.S.2d 870, 678 N.E.2d 482 [1997], cert. denied sub nom. Cordero v. Lalor, 522 U.S. 846, 118 S.Ct. 131, 139 L.Ed.2d 80 [1997] ), and an inmate is barred by the relevant disciplinary rule from possessing “any item that may be classified as a weapon ... by description, use or appearance” (7 NYCRR 270.2[B][14][i] ). Here, the Hearing Officer could readily determine from the description and photograph of the knife that it fell within that category ( see Matter of Greathouse v. Fischer, 108 A.D.3d 964, 964, 969 N.Y.S.2d 240 [2013]; Matter of Mallen v. Hearing Officer, Great Meadow Correctional Facility, 304 A.D.2d at 879, 759 N.Y.S.2d 772). The fact that petitioner had an innocuous explanation for her possession of the item did not bar a finding that it constituted a weapon in the prison setting ( see Matter of Proctor v. Fischer, 107 A.D.3d 1267, 1267, 967 N.Y.S.2d 246 [2013], lv. denied22 N.Y.3d 853, 2013 WL 5614697 [2013]; Matter of Tinnirello v. Selsky, 51 A.D.3d 1238, 1239, 858 N.Y.S.2d 806 [2008] ). Petitioner's remaining claims, to the extent that they are preserved for our review, have been examined and found to lack merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.