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In re Powell

Supreme Court of New York, Third Department

July 18, 2013

In the Matter of WARREN POWELL, Petitioner,
v.
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: June 6, 2013

Warren Powell, Comstock, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Before: Lahtinen, J.P., Spain, McCarthy and Garry, JJ.

MEMORANDUM AND JUDGMENT

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 disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with possession of a weapon, smuggling and possession of contraband after a 2½-inch by one half-inch sharpened piece of metal secreted in the lining of his clothing set off a facility metal detector. Following a tier III disciplinary hearing, petitioner was found guilty of all charges and that determination was upheld on his administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding solely challenging the determination of guilt as to the possession of a weapon charge.

We confirm. Contrary to petitioner's argument, the determination finding him guilty of possession of a weapon is supported by substantial evidence, including the misbehavior report and related documentation, photographs attached thereto, and petitioner's hearing testimony (see Matter of Harvey v Fischer, 94 A.D.3d 1303, 1303 [2012]).

Petitioner's remaining contentions have been examined and found to be unpersuasive.

Lahtinen, J.P., Spain, McCarthy and Garry, JJ., concur.

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


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