Matter of Carlos Rodriguez v Michael McGinnis

Matter of Rodriguez v McGinnis 2005 NY Slip Op 09163 [24 AD3d 845] December 1, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

In the Matter of Carlos Rodriguez, Petitioner, v Michael McGinnis, as Superintendent of Southport Correctional Facility, Respondent.

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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

During a search of petitioner's cell, a correction officer found two needles, three tattoo patterns and a state pen which had been emptied and filled with blue ink. As a result, petitioner was charged in a misbehavior report with possessing altered property and tattoo equipment. He was found guilty of these charges following a tier II disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

Initially, we reject petitioner's challenge to the sufficiency of the evidence supporting respondent's finding that petitioner possessed altered property. At the hearing, petitioner did not dispute the fact that he possessed a state pen filled with blue ink when only black pens were provided to inmates. Although he explained that another inmate had given him the pen, that inmate denied doing so. The misbehavior report, together with the reasonable inferences to be drawn from the testimony, provide substantial evidence supporting petitioner's guilt (see Matter of Morgan v Goord, 10 AD3d 792, 792 [2004]; Matter of Mathieu v Giambruno, 9 AD3d 632, 633 [2004], lv denied 3 NY3d 609 [2004]; see also Matter of Charles v Selsky, 13 AD3d 861, [*2]862 [2004]). As to petitioner's assertion that he was improperly denied the right to present documentary evidence consisting of two greeting card pattern books, we also find it to be unavailing. The source of the patterns that petitioner used for tattooing purposes was irrelevant to the charges at hand (see e.g. Matter of Jackson v Goord, 18 AD3d 973, 974 [2005], lv denied 5 NY3d 713 [2005]; Matter of Miller v Goord, 2 AD3d 928, 930 [2003]).

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