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Trisvan v. Fischer

State of New York Supreme Court, Appellate Division Third Judicial Department


March 11, 2010

IN THE MATTER OF FREDERIC TRISVAN, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: January 25, 2010

Before: Peters, J.P., Lahtinen, Kavanagh, Stein and Garry, 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 certain prison disciplinary rules.

During a search of the cellblock where petitioner was confined, a facility plumber found three pieces of a toothbrush secreted in an air vent behind petitioner's cell. All of the pieces had been sharpened and two had metal melted onto the ends. As a result of this discovery, petitioner was charged in a misbehavior report with violating prison disciplinary rules prohibiting inmates from possessing weapons or altered items. Following a tier III disciplinary hearing, petitioner was found guilty of the charges. After the determination was affirmed on administrative appeal, this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony presented at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Fuentes v Fischer, 56 AD3d 919, 920 [2008]; Matter of Fews v Goord, 54 AD3d 1073, 1074 [2008]). While petitioner claims that the items were not his and were placed there by someone else, the reasonable inference of possession arises from the testimony establishing that they were found in an area within petitioner's control (see Matter of Hammond v Selsky, 28 AD3d 1000, 1000 [2006]; Matter of Ameen v Selsky, 25 AD3d 1059 [2006]). In view of this, we find no reason to disturb respondent's determination.

Peters, J.P., Lahtinen, Kavanagh, Stein and Garry, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

20100311

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