State of New York Supreme Court, Appellate Division Third Judicial Department
January 26, 2012
IN THE MATTER OF MARCELINE LOPEZ, PETITIONER,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.
MEMORANDUM AND JUDGMENT
Calendar Date: December 12, 2011
Before: Peters, J.P., Rose, Malone Jr., Stein and Egan Jr., 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.
After a search of petitioner's prison cell revealed two pieces of sharp metal taped to a plastic toothbrush handle, he was charged in a misbehavior report with possession of a weapon. Subsequently, a strip frisk of petitioner revealed two white tablets secreted in his sock that were identified as medication for which he did not have a prescription and, thus, he was charged in a second misbehavior report with unauthorized medication and smuggling. At the tier III disciplinary hearing that followed, petitioner pleaded guilty to unauthorized medication and was found guilty of the other two charges. That determination was administratively affirmed and this CPLR article 78 proceeding ensued.
We confirm. Initially, inasmuch as petitioner pleaded guilty to the unauthorized medication charge, he is precluded from challenging the determination of guilt with respect thereto (see Matter of Cruz v Walsh, 87 AD3d 1234, 1234 ). As to the remaining charges, the misbehavior reports, supporting documentation and hearing testimony, including petitioner's admissions, provide substantial evidence to support the finding of guilt (see Matter of Cole v New York State Dept. of Correctional Servs., 87 AD3d 1243, 1243 ; Matter of Lamere v Fischer, 87 AD3d 768, 768 ). "A reasonable inference of possession arises from the fact that the weapon was found in an area within petitioner's control" (Matter of Hamilton v Fischer, 84 AD3d 1614, 1614  [citations omitted]), even though his access was not exclusive (see Matter of Rogers v Bezio, 67 AD3d 1100, 1101 ). Petitioner's contention that the charges were in retaliation for grievances he had filed presented a credibility issue to be resolved by the Hearing Officer (see Matter of White v Fischer, 87 AD3d 1249, 1250 ; Matter of Kalwasinski v Fischer, 87 AD3d 1187, 1188 ). Finally, a review of the record demonstrates that the finding of guilt was based upon the evidence adduced, rather than any alleged hearing officer bias (see Matter of Hardy v Smith, 87 AD3d 779, 780 ). Petitioner's remaining contentions are unpreserved for this Court's review.
Peters, J.P., Rose, Malone Jr., Stein and Egan Jr., JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Robert D. Mayberger Clerk of the Court
© 1992-2012 VersusLaw Inc.