Hammond v. Selsky

28 A.D.3d 1000, 812 N.Y.S.2d 720

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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

After an inspection of petitioner’s cell door track revealed a razor blade with melted plastic handles, petitioner was charged in a misbehavior report with possession of a weapon and possession of an altered item. Following a disciplinary hearing, petitioner was found guilty of both charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

Even if, as petitioner claims, the weapon was accessible from outside his cell, it was found in an area within petitioner’s control and occupied by him for over a month, giving rise to a reasonable inference that the weapon belonged to him (see Matter of Bunting v Goord, 25 AD3d 845 [2006]; Matter of Shackle-ford v Goord, 3 AD3d 622, 623 [2004]; Matter of Davis v Senkowski, 306 AD2d 778 [2003]). This inference, together with the misbehavior report and testimony at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Shackleford v Goord, supra at 623). Petitioner’s remaining contentions have been reviewed and found to be without merit.

Cardona, P.J., Mercure, Spain, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.