Matter of Cooperider v Annucci

Matter of Cooperider v Annucci 2015 NY Slip Op 04377 Decided on May 21, 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: May 21, 2015
519876

[*1]In the Matter of WAYNE COOPERIDER, Petitioner,

v

ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: March 31, 2015
Before: Garry, J.P., Egan Jr., Lynch and Clark, JJ.

Wayne Cooperider, Cape Vincent, petitioner pro se.

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

MEMORANDUM AND JUDGMENT

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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of possession of alcohol and possession of contraband. The charges stemmed from a search of petitioner's cube that revealed two containers of homemade alcohol. Although other inmates had access to the area where the containers were found, a reasonable inference of possession arises where, as here, the area where the contraband was discovered is within petitioner's control (see Matter of Velez v Prack, 122 AD3d 1041, 1041-1042 [2014]; Matter of Sweet v

Poole, 48 AD3d 867, 868 [2008]). This inference, together with the misbehavior report and petitioner's testimony at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Starling v New York State Dept. of Corr. & Community Supervision, 123 AD3d 1195, 1196 [2014]; Matter of Sweet v Poole, 48 AD3d at 868; Matter of Vento v Goord, 41 AD3d 1123, 1123 [2007]). Furthermore, petitioner's contention that he was denied the right to call witnesses is not preserved for our review given his failure to object at the hearing (see Matter of Robinson v Annucci, 122 AD3d 981, 982 [2014]). In any event, his request for character witnesses was properly denied (see Matter of Elias v Fischer, 118 AD3d 1193, 1194 [2014]).

Garry, J.P., Egan Jr., Lynch and Clark, JJ., concur.

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