Lopez v. Fischer

91 A.D.3d 1223, 937 N.Y.2d 451

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 2012
• Status: Published

Opinion

We confirm. Initially, inasmuch as petitioner pleaded guilty to the unauthorized medication charge, he is precluded from chailenging the determination of guilt with respect thereto (see Matter of Cruz v Walsh, 87 AD3d 1234, 1234 [2011]). As to the remaining charges, the misbehavior reports, supporting documentation and hearing testimony, including petitioner’s admissions, provide substantial evidence to support the finding of guilt (see Matter of Cole v New York State Dept. of Correctional Servs., 87 AD3d 1243, 1243 [2011]; Matter of Lamere v Fischer, 87 AD3d 768, 768 [2011]). “A reasonable inference of possession arises from the fact that the weapon was found in an area within petitioner’s control” (Matter of Hamilton v Fischer, 84 AD3d 1614 [2011] [citations omitted]), even though his access was not exclusive (see Matter of Rogers v Bezio, 67 AD3d 1100, 1101 [2009]). Petitioner’s contention that the charges were in retaliation for grievances he had filed presented a credibility issue to be resolved by the Hearing Officer (see Matter of White v Fischer, 87 AD3d 1249, 1250 [2011]; Matter of Kalwasinski v Fischer, 87 AD3d 1187, 1188 [2011]). Finally, a review of the record demonstrates that the finding of guilt was based upon the evidence adduced, rather than any alleged hearing officer bias (see Matter of Hardy v Smith, 87 AD3d 779, 780 [2011]). Petitioner’s remaining contentions are unpreserved for this Court’s review.

Peters, J.P, Rose, Malone Jr., Stein and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.