In the Matter of Maurice Daughtry v. Bezio

• Decision Date: 19 May 2011
• Citation: 922 N.Y.S.2d 664,2011 N.Y. Slip Op. 04147,84 A.D.3d 1623
• Parties: In the Matter of Maurice DAUGHTRY, Petitioner,v.Norman BEZIO, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1623

922 N.Y.S.2d 664

2011 N.Y. Slip Op. 04147

In the Matter of Maurice DAUGHTRY, Petitioner,

v.Norman BEZIO, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

May 19, 2011.

Maurice Daughtry, Stormville, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.Before: PETERS, J.P., SPAIN, MALONE JR., McCARTHY and EGAN JR., JJ.

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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

During a search of petitioner's cell, a correction officer found two ice pick-type weapons, one secreted in the pilaster of the cell and the second secreted in the cell track. The officer also found an altered pen and pencil. As a result, petitioner was charged in a misbehavior report with possessing a weapon and possessing an altered item. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm. The misbehavior report, together with the testimony of its author and the related documentation, provide substantial evidence supporting the determination of guilt ( see Matter of Bartley v. Fischer, 73 A.D.3d 1363, 1363–1364, 901 N.Y.S.2d 743 [2010]; Matter of Cruz v. Goord, 41 A.D.3d 1122, 1122–1123, 840 N.Y.S.2d 171 [2007]; Matter of Ameen v. Selsky, 25 A.D.3d 1059, 807 N.Y.S.2d 318 [2006] ). The proof established that the items were found in an area within petitioner's control thereby supporting the reasonable inference that they belonged to him ( see Matter of Trisvan v. Fischer, 71 A.D.3d 1253, 1254, 899 N.Y.S.2d 378 [2010]; Matter of Figueroa v. Selsky, 49 A.D.3d 1059, 1059, 853 N.Y.S.2d 443 [2008], lv. denied 10 N.Y.3d 714, 861 N.Y.S.2d 274, 891 N.E.2d 309 [2008] ). Significantly, the correction officer who searched the areas stated that no other individual could have put the items in those locations without using special tools of the type used by a locksmith, which he used to retrieve the items. Although petitioner maintained that the items were not his, this presented a credibility issue for the Hearing Officer to resolve ( see Matter of...