Matter of Diaz v Prack

Matter of Diaz v Prack 2015 NY Slip Op 03440 Decided on April 23, 2015 Appellate Division, Third 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 and Entered: April 23, 2015
519360

[*1]In the Matter of EFRAIM DIAZ, Petitioner,

v

ALBERT PRACK, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.

Calendar Date: February 24, 2015
Before: Peters, P.J., McCarthy, Lynch and Devine, JJ.

Efraim Diaz, Coxsackie, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

During a search of petitioner's cell, a correction officer found, under the plastic shade of the cell light, a toothbrush with a can top melted on one end that was wrapped in a cloth lanyard. As a result, petitioner was charged in a misbehavior report with possession of a weapon. Following a tier III disciplinary hearing, petitioner was found guilty as charged. That determination was upheld upon administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm. The detailed misbehavior report, unusual incident report, photograph of the weapon, documentary evidence and hearing testimony provide substantial evidence to support the determination of guilt (see Matter of Nieves v Annucci, 123 AD3d 1368, 1368 [2014]; Matter of Smart v Fischer, 122 AD3d 1023, 1023 [2014], lv denied 24 NY3d 916 [2015]). In addition, contrary to petitioner's assertion, the absence of evidence demonstrating that his cell was searched or inspected prior to his arrival "does not necessarily negate the inference" that he possessed the weapon (Matter of Green v Fischer, 98 AD3d 771, 771-772 [2012]; see Matter of Fong v Goord, 36 AD3d 1099, 1100 [2007]).

Petitioner's remaining contentions, including his assertion that he was denied adequate assistance, have been examined and found to be lacking in merit.

Peters, P.J., McCarthy, Lynch and Devine, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.