McEwen v. Goord

32 A.D.3d 1116, 821 N.Y.S.2d 477

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 2006
• Status: Published

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

During a search of petitioner’s cell, a correction officer found a sharpened plastic toothbrush handle hidden in the cell door track. As a result, petitioner was charged with possessing an altered item and a weapon. He was found guilty of both charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Substantial evidence, consisting of the misbehavior report and the testimony of its author, support the determination of guilt (see Matter of Smith v Goord, 255 AD2d 1007 [1998]). Inasmuch as the sharpened toothbrush handle was found within an area over which petitioner maintained control, it was reasonable to infer that it belonged to him (see Matter of Hammond v Selsky, 28 AD3d 1000, 1000 [2006]). Petitioner’s remaining claims are either unpreserved for our review or are lacking in merit.

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