Opinion
2014-12-4
In the Matter of Tony STARLING, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
Tony Starling, Ogdensburg, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Tony Starling, Ogdensburg, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: STEIN, J.P., GARRY, EGAN JR., LYNCH and DEVINE, 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with possessing a weapon, possessing contraband and possessing an article in a prohibited area after a search of his room uncovered a bent can top fashioned with a handle under petitioner's mattress. Petitioner was found guilty as charged and, after exhausting his administrative remedies, commenced this CPLR article 78 proceeding seeking to annul the determination.
We confirm. The misbehavior report and supporting documentation provide substantial evidence to support the determination of guilt ( see Matter of Fragosa v. Miller, 95 A.D.3d 1524, 1525, 943 N.Y.S.2d 918 [2012]; Matter of Chiarappa v. Fischer, 84 A.D.3d 1628, 1629, 923 N.Y.S.2d 310 [2011] ). Although petitioner shared his room with other inmates, a reasonable inference of possession arises by virtue of his control over the area where the weapon was found ( see Matter of Cox v. Fischer, 114 A.D.3d 973, 974, 979 N.Y.S.2d 862 [2014], lv. dismissed24 N.Y.3d 941, 994 N.Y.S.2d 41, 18 N.E.3d 741 [2014]; Matter of Aguirre v. Fischer, 111 A.D.3d 1219, 1220, 975 N.Y.S.2d 814 [2013] ). Petitioner's denial that the weapon was his presented a credibility issue for the Hearing Officer to resolve ( see Fisher v. Fischer, 105 A.D.3d 1286, 1286, 963 N.Y.S.2d 606 [2013] ). Petitioner's remaining contentions are raised for the first time on appeal and, therefore, are unpreserved for our review ( see Matter of Merritt v. Fischer, 108 A.D.3d 993, 994, 969 N.Y.S.2d 248 [2013]; Matter of Hynes v. Fischer, 104 A.D.3d 1015, 1016, 960 N.Y.S.2d 735 [2013]; Matter of Wigfall v. Department of Corr. Servs., 100 A.D.3d 1211, 1213, 954 N.Y.S.2d 274 [2012] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.