Matter of Figueroa v. Selsky

• Citation: 853 N.Y.S.2d 443,2008 NY Slip Op 02530,49 A.D.3d 1059
• Decision Date: 20 March 2008
• Docket Number: 502802.
• Parties: In the Matter of ANGEL FIGUEROA, Petitioner, v. DONALD SELSKY, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
• Court: New York Supreme Court Appellate Division

49 A.D.3d 1059

853 N.Y.S.2d 443

2008 NY Slip Op 02530

In the Matter of ANGEL FIGUEROA, Petitioner, v. DONALD SELSKY, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

502802.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided March 20, 2008.

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.

Following a search of his cell, petitioner was charged in a misbehavior report with possession of a weapon, possession of money and possession of contraband. At the ensuing tier III disciplinary hearing, petitioner pleaded guilty to possession of contraband insofar as the charge pertained to a radio and a translator for which he did not have a permit. He pleaded not guilty to the remaining charges. At the conclusion thereof, the Hearing Officer found petitioner guilty of all charges and a penalty was imposed. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination.

Petitioner contends that the determination of guilt is not supported by substantial evidence in the record as a whole. We cannot agree. Preliminarily, petitioner's plea of guilty to possession of contraband forecloses his challenge to that part of the determination sustaining that charge (see Matter of Spencer v Goord, 38 AD3d 1028 [2007], lv denied 9 NY3d 802 [2007]). As to the remaining charges, the testimony of the correction officer who conducted the search was sufficient to demonstrate the presence of razor-like weapons and a $50 bill secreted in the false bottom of a thermos that, according to the correction officer, petitioner admitted was his. Moreover, the fact that the thermos was located in an area over which petitioner had control supports the inference that it belonged to him (see Matter of Ameen v Selsky, 25 AD3d 1059 [2006]). To the extent that petitioner denied ownership or possession of the thermos, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Carter v Goord, 45 AD3d 1077 [2007]). Finally, even accepting petitioner's claim that the Hearing Officer failed to independently assess the reliability and credibility of the confidential information provided, the record contains independent...