Matter of Turner v Fischer

Matter of Matter of Turner v Fischer 2012 NY Slip Op 03654 Decided on May 8, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 8, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, A.P.J.
L. PRISCILLA HALL
PLUMMER E. LOTT
SANDRA L. SGROI, JJ.
2010-08088
(Index No. 2002/10)

[*1]In the Matter of Cedric Turner, petitioner,

v

Brian Fischer, etc., respondent.




Cedric Turner, Malone, N.Y., appellant pro se.
Eric T. Schneiderman, New York, N.Y. (Michael S. Belohlavek
and Ann P. Zybert of counsel), for
respondent.


DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of Norman R. Bezio, Director of Special Housing/Inmate Disciplinary Program, on behalf of Brian Fischer, as Commissioner of the New York State Department of Correctional Services, dated January 15, 2010, which affirmed a determination of a hearing officer dated November 12, 2009, made after a Tier III disciplinary hearing, finding that the petitioner violated prison rule 113.10 (7 NYCRR 270.2[b][14][i]) by possessing contraband classified as a weapon, and imposing a penalty.

ADJUDGED that the determination is confirmed, without costs or disbursements, the petition is denied, and the proceeding is dismissed on the merits.

The possibility that "the weapon [in question] could have been placed in the [petitioner's cell] door track by another inmate" (Matter of Jimenez v Fischer, 87 AD3d 771, 771) did not negate the existence of substantial evidence to support the determination that the petitioner violated prison rule 113.10 (7 NYCRR 270.2[b][14][I]) by possessing contraband classified as a weapon (id.; see Matter of Daughtry v Bezio, 84 AD3d 1623; Matter of McEwen v Goord, 32 AD3d 1116; Matter of Hammond v Selsky, 28 AD3d 1000; Matter of Shackleford v Goord, 3 AD3d 622; Matter of Nieves v Goord, 2 AD3d 1173; cf. Matter of Price v Phillips, 4 AD3d 364).

The petitioner's remaining contentions are without merit.
MASTRO, A.P.J., HALL, LOTT and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court