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In the Matter of Adam Wright v. Brian Fischer

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


September 22, 2011

IN THE MATTER OF ADAM WRIGHT, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: July 27, 2011

Before: Mercure, J.P., Spain, Rose, 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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with smuggling and possessing a tool without authorization after the vocational drafting instructor found a computer disk in a notebook underneath petitioner's assigned computer keyboard in the vocational drafting classroom. Following a tier III disciplinary hearing, petitioner was found not guilty of smuggling, but guilty of unauthorized possession of a tool. The determination was affirmed on administrative appeal and the penalty was partially modified thereafter. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and related documentation, together with the testimony adduced at the hearing, provide substantial evidence supporting the determination finding petitioner guilty of possessing the floppy disk which constituted an unauthorized tool (see Matter of Parra v Fischer, 76 AD3d 724, 725 [2010], lv denied 15 NY3d 714 [2010]; Matter of Dexter v Goord, 43 AD3d 516, 517 [2007]). The reasonable inference of possession arises from petitioner's control of the area where the disk was found, as was established by the testimony of the vocational drafting instructor who indicated that petitioner had used his assigned computer just prior to the two-day closure of the classroom and that the disk was found before classes commenced on the morning that the classroom opened (see Matter of Daughtry v Bezio, 84 AD3d 1623, 1624 [2011], lv denied ___ NY3d ___ [Sept. 15, 2011]; Matter of Trisvan v Fischer, 71 AD3d 1253, 1254 [2010]). Petitioner's denial of possession and suggestion that the instructor fabricated the evidence against him presented a credibility issue for the Hearing Officer to resolve (see Matter of Parra v Fischer, 76 AD3d at 725; Matter of Black v Goord, 12 AD3d 1005, 1006 [2004]). As for petitioner's claim that the Inspector General's investigation was inadequate, this was the subject of a separate grievance and is not part of this proceeding challenging the prison disciplinary determination (see Matter of Samuels v Department of Correctional Servs. Staff, 84 AD3d 1629, 1630 [2011]). Petitioner's remaining contentions either have not been preserved for our review or are lacking in merit.

Mercure, J.P., Spain, Rose, 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

20110922

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