Alston v. Goord

4 A.D.3d 708, 771 N.Y.S.2d 919, 2004 N.Y. App. Div. LEXIS 2031

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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules that prohibit possession of a weapon, possession of contraband and unauthorized exchange of property.* Based upon confidential information, a search of petitioner’s cell was conducted which uncovered a ÍPA-inch toothbrush sharpened to a point on each end hidden inside petitioner’s locker. Also found among petitioner’s belongings was a watch with another inmate’s name on it. Contrary to petitioner’s assertion, the misbehavior report, the weapon found among petitioner’s belongings and testimony at the hearing provide substantial evidence to support the determination of petitioner’s guilt (see Matter of Davis v Senkowski, 306 AD2d 778, 778 [2003]). Although other inmates had access to petitioner’s locker, a reasonable inference of possession arises when contraband is found in an area within an inmate’s control (see Matter of Jackson v Selsky, 288 AD2d 802, 802 [2001], lv denied 97 NY2d 612 [2002] ). Petitioner’s assertion that the weapon could have been planted by another inmate presented a credibility issue for the Hearing Officer to resolve (see Matter of Davis v Senkowski, supra at 778). We also reject petitioner’s assertion that he was improperly excluded from viewing the search of his cell. As petitioner was not removed from or present at his cell at the time the search was conducted, there was no requirement that he be called back to view the search (see Matter of Lopez v Selsky, 300 AD2d 975, 975 [2002], lv denied 100 NY2d 509 [2003]). Petitioner’s remaining contentions, having not been raised at the hearing or on administrative appeal, are not preserved for our review (see Matter of Presley v Miller, 306 AD2d 707, 707 [2003] ).

Cardona, EJ., Crew III, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Footnotes

*

Petitioner pleaded guilty to the charge of unauthorized exchange of property which precludes any challenge to the evidentiary basis finding him guilty of this charge (see Matter of Pinkney v Goord, 302 AD2d 820, 821 [2003]).