Trisvan v. Fischer
| Citation | 899 N.Y.S.2d 378,71 A.D.3d 1253 |
| Parties | In the Matter of Frederic TRISVAN, Petitioner, v. Brian FISCHER, as Commissioner of Correctional Services, Respondent. |
| Decision Date | 11 March 2010 |
| Court | New York Supreme Court Appellate Division |
Frederic Trisvan, Elmira, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: PETERS, J.P., LAHTINEN, KAVANAGH, STEIN and GARRY, JJ.
Proceeding pursuant to CPLR article 78 () to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
During a search of the cellblock where petitioner was confined, a facility plumber found three pieces of a toothbrush secreted in an air vent behind petitioner's cell. All of the pieceshad been sharpened and two had metal melted onto the ends. As a result of this discovery, petitioner was charged in a misbehavior report with violating prison disciplinary rules prohibiting inmates from possessing weapons or altered items. Following a tier III disciplinary hearing, petitioner was found guilty of the charges. After the determination was affirmed on administrative appeal, this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony presented at the hearing, provide substantial evidence supporting the determination of guilt ( see Matter of Fuentes v. Fischer, 56 A.D.3d 919, 920, 868 N.Y.S.2d 326 [2008]; Matter of Fews v. Goord, 54 A.D.3d 1073, 1074, 863 N.Y.S.2d 836 [2008] ). While petitioner claims that the items were not his and were placed there by someone else, the reasonable inference of possession arises from the testimony establishing that they were found in an area within petitioner's control ( see Matter of Hammond v. Selsky, 28 A.D.3d 1000, 1000, 812 N.Y.S.2d 720 [2006]; Matter of Ameen v. Selsky, 25 A.D.3d 1059, 807 N.Y.S.2d 318 [2006] ). In view of this, we find no reason to disturb respondent's determination.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
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