Matter of Diaz v. Prack

127 A.D.3d 1489, 6 N.Y.S.3d 327

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 23, 2015
• Docket: 519360
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

During a search of petitioner’s cell, a correction officer found, under the plastic shade of the cell light, a toothbrush with a can top melted on one end that was wrapped in a cloth lanyard. As a result, petitioner was charged in a misbehavior report with possession of a weapon. Following a tier III disciplinary hearing, petitioner was found guilty as charged. That determination was upheld upon administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm. The detailed misbehavior report, unusual incident report, photograph of the weapon, documentary evidence and hearing testimony provide substantial evidence to support the determination of guilt (see Matter of Nieves v Annucci, 123 AD3d 1368, 1368 [2014]; Matter of Smart v Fischer, 122 AD3d 1023, 1023 [2014], lv denied 24 NY3d 916 [2015]). In addition, contrary to petitioner’s assertion, the absence of evidence demonstrating that his cell was searched or inspected prior to his arrival “does not necessarily negate the inference” that he possessed the weapon (Matter of Green v Fischer, 98 AD3d 771, 771-772 [2012]; see Matter of Fong v Goord, 36 AD3d 1099, 1100 [2007]).

Petitioner’s remaining contentions, including his assertion that he was denied adequate assistance, have been examined and found to be lacking in merit.

Peters, P.J., McCarthy, Lynch and Devine, JJ., concur.

Adjudged that the determination is confirmed, without costs, and petition dismissed.