Trazz Sawyer, Albion, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, ROSE, LYNCH and MULVEY, JJ.
Opinion
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 finding petitioner guilty of violating certain prison disciplinary rules.
During a search of petitioner's cell, a correction officer found two metal rods less than four inches in length, one that was bent and the other that was melted into a plastic pen tube, concealed behind a piece of baseboard. As a result, petitioner was charged in a misbehavior report with possessing a weapon, possessing an altered item and possessing contraband. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding followed.
Initially, contrary to petitioner's claim, the hearing transcript
does not reveal the presence of inaudible gaps that are so significant as to preclude meaningful review (
see Matter of
Coons v. Fischer, 106 A.D.3d 1302, 1303,
964 N.Y.S.2d 778 [2013] ;
Matter of
Argentina v. Fischer, 98 A.D.3d 768, 769,
949 N.Y.S.2d 824 [2012] ). In addition, the misbehavior report was sufficiently detailed to provide petitioner with notice of the charges to enable him to prepare a defense (
see Matter of
Hyatt v. Annucci,
125 A.D.3d 1025, 1026,
1 N.Y.S.3d 583 [2015] ;
Matter of
Maletta v. Amoia, 122 A.D.3d 962, 963,
995 N.Y.S.2d 818 [2014] ). Turning to the merits, the misbehavior report, related documentation and hearing testimony provide substantial evidence supporting the determination of guilt (
see Matter of
Tavarez v. Annucci, 134 A.D.3d 1374, 1375,
21 N.Y.S.3d 767 [2015] ;
Matter of
Douglas v. Fischer, 126 A.D.3d 1244, 1245,
3 N.Y.S.3d 654 [2015],
lv. denied
26 N.Y.3d 904,
2015 WL 5254842 [2015] ). The fact that the metal objects were found in an area within petitioner's control, even if not exclusive, supports the inference of possession (
see Matter of
Nieves v. Annucci,
123 A.D.3d 1368, 1369,
997 N.Y.S.2d 847 [2014] ;
Matter of
Velez v. Prack,
122 A.D.3d 1041, 1041,
994 N.Y.S.2d 740 [2014] ). Petitioner's claims that the objects could have been planted there by an aggrieved correction officer or another inmate or may have been left behind by the prior occupant of the cell presented credibility issues for the Hearing Officer to resolve (
see Matter of
Tavarez
v. Annucci,
134 A.D.3d at 1375,
21 N.Y.S.3d 767;
Matter of
Nieves v. Annucci,
123 A.D.3d at 1369,
997 N.Y.S.2d 847 ). Furthermore, there is no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (
see Matter of
Garcia v. Garner, 122 A.D.3d 988, 989,
995 N.Y.S.2d 829 [2014] ;
Matter of
McFadden v. Prack, 120 A.D.3d 853, 855,
990 N.Y.S.2d 376 [2014],
lv. dismissed 24 N.Y.3d 930,
993 N.Y.S.2d 542,
17 N.E.3d 1138 [2014],
lv. denied
24 N.Y.3d 908,
2014 WL 5394013 [2014] ). We have considered petitioner's remaining contentions and find them to be unavailing.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.