Matter of Carter v Goord

Matter of Carter v Goord 2007 NY Slip Op 08808 [45 AD3d 1077] November 15, 2007 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

In the Matter of Scott Carter, Petitioner, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.

—[*1] Scott Carter, Napanoch, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Nancy A. Spiegel of counsel), for respondent.

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

During a random search of petitioner's cell, a correction officer discovered a sharpened piece of metal approximately 7¼ inches long secreted behind a light fixture. As a result, petitioner was charged in a misbehavior report with possessing a weapon. He was found guilty following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the documentary evidence establishing that petitioner's cell was searched prior to his occupancy and that no contraband was found, provided substantial evidence supporting the determination of guilt (see Matter of Daum v Goord, 27 AD3d 858, 859 [2006]). The fact that the weapon was found in an area within petitioner's control supports the inference of possession (see Matter of Ameen v Selsky, 25 AD3d 1059, 1059 [2006]). Although petitioner denied that the weapon belonged to him, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Cummings v Goord, 10 AD3d 748, 749 [2004]). Finally, petitioner has not preserved his claim that he was denied adequate prehearing assistance inasmuch as he did not object at the hearing (see Matter of Chaney v Selsky, 35 AD3d 1109, 1110 [2006]; Matter of Lunney v Goord, 290 AD2d 687, 688 [2002]). [*2]

Mercure, J.P., Peters, Mugglin, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.