Matter of Fuentes v Fischer

Matter of Fuentes v Fischer 2008 NY Slip Op 08578 [56 AD3d 919] November 13, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

In the Matter of Jesus Fuentes, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, et al., Respondents.

—[*1] Jesus Fuentes, Dannemora, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.

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

A search of petitioner's prison cell resulted in the discovery of a sharpened aluminum can lid hidden in his locker and a sharpened 2½-inch piece of metal hidden in a container of dental floss. Petitioner was charged in a misbehavior report with possession of a weapon and was found guilty following a tier III disciplinary hearing. Upon administrative review, that determination was affirmed prompting this CPLR article 78 proceeding.

We confirm. The determination of guilt is supported by substantial evidence including the misbehavior report and hearing testimony (see Matter of Kearney v Fischer, 51 AD3d 1185, 1185 [2008]). Petitioner's contention that the can lid was used to slice vegetables and the other metal object was used to repair his eyeglasses and wristwatch did not preclude a finding that the objects were dangerous weapons, as the prohibition against possessing the altered items is not [*2]limited by an inmate's intent (see Matter of Tinnirello v Selsky, 51 AD3d 1238, 1239 [2008]). Moreover, petitioner's claim that the disciplinary rule prohibiting the possession of weapons (see 7 NYCRR 270.2 [B] [14] [i]) is unconstitutionally vague is without merit (see Matter of Tinnirello v Selsky, 51 AD3d at 1239).

With regard to petitioner's claim that he was denied adequate employee assistance, the record reflects that any defects in the provided assistance were cured by the Hearing Officer at the disciplinary hearing (see Matter of Jenkins v Selsky, 51 AD3d 1239, 1240 [2008]). Despite petitioner's contention to the contrary, he was not entitled to the right to counsel at his disciplinary hearing (see Matter of Shaffer v Hoke, 174 AD2d 787, 788 [1991]) nor were the Miranda requirements applicable to the hearing and petitioner was informed that any statements he made could not be used against him in a criminal proceeding (see Matter of Arner v Warne, 54 AD2d 903, 904 [1976]). Finally, as petitioner received an adequate reply to his request for documents pursuant to the Freedom of Information Law (see Public Officers Law art 6), we find his request to compel disclosure moot (see Matter of Rattley v New York City Police Dept., 96 NY2d 873, 875 [2001]). We have examined petitioner's remaining contentions, including that the penalty imposed was harsh and excessive, and find them without merit.

Mercure, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.