Sierra v NYC Dept. of Correction, Warden, Rikers Is. Correction
2008 NY Slip Op 02039 [49 AD3d 337]
March 11, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 14, 2008
Sierra v NYC Dept. of Correction, Warden, Rikers Is. Correction Facility
Luis Sierra, Petitioner,
NYC Department of Correction, Warden, Rikers Island Correction Facility, Respondent.
—[*1] The Legal Aid Society, New York City (William Gibney of counsel), for petitioner.
Michael A. Cardozo, Corporation Counsel, New York City (Jane L. Gordon of counsel), for respondent
Determination of respondent New York City Department of Correction, dated September 29, 2006, finding petitioner guilty of possessing a contraband weapon, unanimously confirmed, the petition denied, and the proceeding (transferred to this Court by order of the Supreme Court, Bronx County [Thomas Farber, J.], entered December 15, 2006) dismissed, without costs.
The hearing officer's determination is supported by substantial evidence, including the misbehavior report and hearing testimony. It is undisputed that a correction officer saw an object in a vent in petitioner's cell, which was pushed so far back the officer was unable to retrieve it. That the officer was ultimately able to retrieve the weapon from the back end of the vent in the locked closet next door to petitioner's cell does not undermine the finding that the contraband was secreted within petitioner's control, especially since there was a clothesline attached to it (see Matter of Tarbell v Goord, 263 AD2d 563 ). The fact that inmates had no access to the locked closet further supports a reasonable inference that the contraband was secreted from within petitioner's cell, and that the clothesline was attached to make it retrievable by the person occupying the cell. Under the circumstances, it is unavailing that the officer was able to access the weapon from the locked closet rather than from petitioner's cell, particularly since it is clear [*2]that he had no prior knowledge of the nature of the object, nor would he have been aware how it was placed in the vent. Concur—Mazzarelli, J.P., Saxe, Friedman and Nardelli, JJ.