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In the Matter of Raymond v. Brian Fischer

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


May 19, 2011

IN THE MATTER OF RAYMOND HAMILTON, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

Calendar Date: April 6, 2011

MEMORANDUM AND JUDGMENT

Before: Mercure, J.P., Peters, Lahtinen, Malone Jr. and McCarthy, 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 petitioner's cell, a correction officer found a razor blade that had been melted into the end of a plastic silverware handle hidden under the mattress of petitioner's bed. As a result, he was charged in a misbehavior report with possessing a weapon and possessing an altered item. Following a tier III disciplinary hearing, he was found guilty of the charges. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm. Substantial evidence -- consisting of the misbehavior report, related documentation and the testimony of the correction officer who recovered the weapon -- supports the determination of guilt (see Matter of Parra v Fischer, 76 AD3d 724, 725 [2010], lv denied 15 NY3d 714 [2010]; Matter of Vines v Goord, 19 AD3d 951, 952 [2005]). A reasonable inference of possession arises from the fact that the weapon was found in an area within petitioner's control (see Matter of Sweet v Poole, 48 AD3d 867, 868 [2008]; Matter of Ameen v Selsky, 25 AD3d 1059 [2006]), and petitioner's claim that it was planted by someone else presented a credibility issue for the Hearing Officer to resolve (see Matter of Wilson v Goord, 47 AD3d 1102, 1103 [2008]; Matter of Ubaldo v Leclaire, 46 AD3d 975 [2007]). Therefore, we find no reason to disturb the determination at issue.

Mercure, J.P., Peters, Lahtinen, Malone Jr. and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110519

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