In re Wood, 020118 NYAPP3, 2018-00582
|Party Name:||In the Matter of TIMOTHY WOOD, Petitioner, v. ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.|
|Attorney:||Timothy Wood, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for respondents.|
|Judge Panel:||Before: Garry, P.J., Lynch, Clark, Aarons and Pritzker, JJ. Garry, P.J., Lynch, Clark, Aarons and Pritzker, JJ., concur.|
|Case Date:||February 01, 2018|
Calendar Date: December 13, 2017
Timothy Wood, Attica, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for respondents.
Before: Garry, P.J., Lynch, Clark, Aarons and Pritzker, JJ.
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 Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with possessing a weapon and destroying state property after a search of his cell uncovered a toothbrush with a state-issued razor blade attached to it that was secured inside his locker with a magnet. Following a tier III disciplinary hearing, petitioner was found guilty as charged. The penalty imposed was subsequently modified, and the modified determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, photograph of the weapon and the hearing testimony of the correction officer who found it provide substantial evidence of petitioner's guilt (see Matter of Hill v Venettozzi, 144 A.D.3d 1295, 1296 ; Matter of Gano v Venettozzi, 142 A.D.3d 1240, 1240 ). Petitioner's claim that the weapon was not his, and that it must have been planted in his locker by an inmate the day of the cell search while petitioner was working at the metal shop, created a credibility issue for the Hearing Officer to resolve (see Matter of Starling v New York State Dept. of Corr. & Community Supervision, 123 A.D.3d 1195, 1196 ; Matter of Aguirre v Fischer, 111 A.D.3d 1219, 1220 ). We also note that a reasonable inference of possession arises by virtue of petitioner's control over the locker area of his cell (see Matter of Mitchell v Department of Corr. &...
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