Figueroa v. Selsky

Appellate Division of the Supreme Court of New York

Figueroa v. Selsky

49 A.D.3d 1059, 853 N.Y.2d 443

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 20, 2008

StatusPublished

Cited by5 cases

This text of 49 A.D.3d 1059 (Figueroa v. Selsky) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Figueroa v. Selsky, 49 A.D.3d 1059, 853 N.Y.2d 443 (N.Y. Ct. App. 2008).

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Opinion

Following a search of his cell, petitioner was charged in a misbehavior report with possession of a weapon, possession of money and possession of contraband. At the ensuing tier III disciplinary hearing, petitioner pleaded guilty to possession of contraband insofar as the charge pertained to a radio and a translator for which he did not have a permit. He pleaded not guilty to the remaining charges. At the conclusion thereof, the Hearing Officer found petitioner guilty of all charges and a penalty was imposed. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination.

Petitioner contends that the determination of guilt is not supported by substantial evidence in the record as a whole. We cannot agree. Preliminarily, petitioner’s plea of guilty to possession of contraband forecloses his challenge to that part of the determination sustaining that charge (see Matter of Spencer v Goord, 38 AD3d 1028 [2007], lv denied 9 NY3d 802 [2007]). As to the remaining charges, the testimony of the correction officer who conducted the search was sufficient to demonstrate the presence of razor-like weapons and a $50 bill secreted in the false bottom of a thermos that, according to the correction officer, petitioner admitted was his. Moreover, the fact that the thermos was located in an area over which petitioner had control supports the inference that it belonged to him (see Matter of Ameen v Selsky, 25 AD3d 1059 [2006]). To the extent that petitioner denied ownership or possession of the thermos, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Carter v Goord, 45 AD3d 1077 [2007]). Finally, even accepting petitioner’s claim that the Hearing Officer failed to independently assess the reliability and credibility of the confidential information provided, the record contains independent evidence [1060]*1060to sustain the determination (compare Matter of Holmes v Senkowski, 238 AD2d 629, 630 [1997] [testimony and misbehavior report based solely upon confidential information]). Therefore, we find no reason to disturb it.

Spain, J.P., Lahtinen, Kane, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Following a search of his cell, petitioner was charged in a misbehavior report with possession of a weapon, possession of money and possession of contraband. At the ensuing tier III disciplinary hearing, petitioner pleaded guilty to possession of contraband insofar as the charge pertained to a radio and a translator for which he did not have a permit. He pleaded not guilty to the remaining charges. At the conclusion thereof, the Hearing Officer found petitioner guilty of all charges and a penalty was imposed. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination.

Petitioner contends that the determination of guilt is not supported by substantial evidence in the record as a whole. We cannot agree. Preliminarily, petitioner’s plea of guilty to possession of contraband forecloses his challenge to that part of the determination sustaining that charge (see Matter of Spencer v Goord, 38 AD3d 1028 [2007], lv denied 9 NY3d 802 [2007]). As to the remaining charges, the testimony of the correction officer who conducted the search was sufficient to demonstrate the presence of razor-like weapons and a $50 bill secreted in the false bottom of a thermos that, according to the correction officer, petitioner admitted was his. Moreover, the fact that the thermos was located in an area over which petitioner had control supports the inference that it belonged to him (see Matter of Ameen v Selsky, 25 AD3d 1059 [2006]). To the extent that petitioner denied ownership or possession of the thermos, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Carter v Goord, 45 AD3d 1077 [2007]). Finally, even accepting petitioner’s claim that the Hearing Officer failed to independently assess the reliability and credibility of the confidential information provided, the record contains independent evidence [1060]*1060to sustain the determination (compare Matter of Holmes v Senkowski, 238 AD2d 629, 630 [1997] [testimony and misbehavior report based solely upon confidential information]). Therefore, we find no reason to disturb it.

Spain, J.P., Lahtinen, Kane, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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49 A.D.3d 1059, 853 N.Y.2d 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/figueroa-v-selsky-nyappdiv-2008.

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