Tavarez v. New York City Department of Correction

Appellate Division of the Supreme Court of New York

Tavarez v. New York City Department of Correction

50 A.D.3d 251, 854 N.Y.S.2d 384

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 1, 2008

StatusPublished

Cited by1 cases

This text of 50 A.D.3d 251 (Tavarez v. New York City Department of Correction) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Tavarez v. New York City Department of Correction, 50 A.D.3d 251, 854 N.Y.S.2d 384 (N.Y. Ct. App. 2008).

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Opinion

Determination of respondent New York City Department of Correction, dated November 17, 2006, which, after a hearing, found that petitioner inmate violated the disciplinary rule prohibiting possession of contraband weapons, and directed that petitioner be detained for 60 days in punitive segregation, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, Bronx County [Martin Marcus, J], entered March 29, 2007), dismissed, without costs.

The record reveals that during a search of petitioner’s cell, a flat metal plate was discovered in the top gate cover of the entrance to the cell. Although petitioner argues, inter alia, that he did not have exclusive access to the area where the weapon was found, a reasonable inference of possession arises from the fact that the weapon was discovered in a location within petitioner’s control (see Matter of Shackleford v Goord, 3 AD3d 622 [2004]; Matter of Tarbell v Goord, 263 AD2d 563 [1999]). This inference, together with the report and notice of infraction, investigation report, incident report and testimony adduced at the hearing, provides substantial evidence to support the determination (see Matter of Foster v Coughlin, 76 NY2d 964 [1990]). Concur—Lippman, P.J., Tom, Williams and Acosta, JJ.

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Determination of respondent New York City Department of Correction, dated November 17, 2006, which, after a hearing, found that petitioner inmate violated the disciplinary rule prohibiting possession of contraband weapons, and directed that petitioner be detained for 60 days in punitive segregation, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, Bronx County [Martin Marcus, J], entered March 29, 2007), dismissed, without costs.

The record reveals that during a search of petitioner’s cell, a flat metal plate was discovered in the top gate cover of the entrance to the cell. Although petitioner argues, inter alia, that he did not have exclusive access to the area where the weapon was found, a reasonable inference of possession arises from the fact that the weapon was discovered in a location within petitioner’s control (see Matter of Shackleford v Goord, 3 AD3d 622 [2004]; Matter of Tarbell v Goord, 263 AD2d 563 [1999]). This inference, together with the report and notice of infraction, investigation report, incident report and testimony adduced at the hearing, provides substantial evidence to support the determination (see Matter of Foster v Coughlin, 76 NY2d 964 [1990]). Concur—Lippman, P.J., Tom, Williams and Acosta, JJ.

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50 A.D.3d 251, 854 N.Y.S.2d 384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tavarez-v-new-york-city-department-of-correction-nyappdiv-2008.

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