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In the Matter of David Alache v. Brian M. Fischer

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


January 26, 2012

IN THE MATTER OF DAVID ALACHE, PETITIONER,
v.
BRIAN M. FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISON, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: December 12, 2011

Before: Mercure, Acting P.J., Spain, Malone Jr., McCarthy 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 a prison disciplinary rule.

A correction officer received an anonymous note indicating that petitioner had a weapon in his locker. The officer received authorization to search petitioner's cell and found a pen with a half set of tweezers attached to the end inside the locker under some magazines. As a result, petitioner was charged in a misbehavior report with possessing a weapon. At the conclusion of a tier III disciplinary hearing, petitioner was found guilty of the charge, and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Substantial evidence, consisting of the misbehavior report and related documentation, as well as the testimony of the correction officer who conducted the search and secured the weapon, supports the determination of guilt (see Matter of Hamilton v Fischer, 84 AD3d 1614 [2011]; Matter of Parra v Fischer, 76 AD3d 724, 725 [2010], lv denied 15 NY3d 714 [2010]). While petitioner maintained that disgruntled inmates who were displeased with his enforcement of ASAT rules planted the weapon in his unlocked locker while he was at work, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Hamilton v Fischer, 84 AD3d at 1614; Matter of Wade v Artus, 59 AD3d 793, 794 [2009], appeal dismissed 12 NY3d 872 [2009]). Notably, even though other inmates may have had access to petitioner's locker, a reasonable inference of possession arises by virtue of 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 Cummings v Goord, 10 AD3d 748, 749 [2004]). Furthermore, we find no merit to petitioner's claim that the chain of custody of the weapon was not properly established inasmuch as the correction officer who secured and photographed the weapon explained that the discrepancy in information contained in the misbehavior report and the contraband/evidence photograph card was attributable to a mistake made by the sergeant who filled out the card (see Matter of McGowan v Fischer, 88 AD3d 1038, 1039 [2011]). Petitioner's remaining contentions are either unpreserved for our review or are lacking in merit.

Mercure, Acting P.J., Spain, Malone Jr., McCarthy and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20120126

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