Powell v. Fischer

108 A.D.3d 963, 968 N.Y.S.2d 813

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 18, 2013
• 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 which found petitioner guilty of violating certain disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with possession of a weapon, smuggling and possession of contraband after a 2V2-inch by one half-inch sharpened piece of metal secreted in the lining of his clothing set off a facility metal detector. Following a tier III disciplinary hearing, petitioner was found guilty of all charges and that determination was upheld on his administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding solely challenging the determination of guilt as to the possession of a weapon charge.

We confirm. Contrary to petitioner’s argument, the determination finding him guilty of possession of a weapon is supported by substantial evidence, including the misbehavior report and petitioner’s hearing testimony (see Matter of Harvey v Fischer, 94 AD3d 1303, 1303 [2012]).

Petitioner’s remaining contentions have been examined and found to be unpersuasive.

Lahtinen, J.P., Spain, McCarthy and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.