Turner v. Fischer
| Decision Date | 08 May 2012 |
| Citation | 943 N.Y.S.2d 755,2012 N.Y. Slip Op. 03654,95 A.D.3d 1026 |
| Parties | In the Matter of Cedric TURNER, petitioner, v. Brian FISCHER, etc., respondent. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Cedric Turner, Malone, N.Y., appellant pro se.
Eric T. Schneiderman, New York, N.Y. (Michael S. Belohlavek and Ann P. Zybert of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review a determination of Norman R. Bezio, Director of Special Housing/Inmate Disciplinary Program, on behalf of Brian *756 Fischer, as Commissioner of the New York State Department of Correctional Services, dated January 15, 2010, which affirmed a determination of a hearing officer dated November 12, 2009, made after a Tier III disciplinary hearing, finding that the petitioner violated prison rule 113.10 (7 NYCRR 270.2[b][14][i] ) by possessing contraband classified as a weapon, and imposing a penalty.
ADJUDGED that the determination is confirmed, without costs or disbursements, the petition is denied, and the proceeding is dismissed on the merits.
The possibility that “the weapon [in question] could have been placed in the [petitioner's cell] door track by another inmate” ( Matter of Jimenez v. Fischer, 87 A.D.3d 771, 771, 927 N.Y.S.2d 804) did not negate the existence of substantial evidence to support the determination that the petitioner violated prison rule 113.10 (7 NYCRR 270.2[b][14][I] ) by possessing contraband classified as a weapon ( id.; see Matter of Daughtry v. Bezio, 84 A.D.3d 1623, 922 N.Y.S.2d 664; Matter of McEwen v. Goord, 32 A.D.3d 1116, 821 N.Y.S.2d 477; Matter of Hammond v. Selsky, 28 A.D.3d 1000, 812 N.Y.S.2d 720; Matter of Shackleford v. Goord, 3 A.D.3d 622, 769 N.Y.S.2d 910; Matter of Nieves v. Goord, 2 A.D.3d 1173, 768 N.Y.S.2d 711; cf. Matter of Price v. Phillips, 4 A.D.3d 364, 770 N.Y.S.2d 882).
The petitioner's remaining contentions are without merit.
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Derti v. Annucci
...that he possessed it (see Matter of Velez v. Prack, 122 A.D.3d 1041, 1041–1042, 994 N.Y.S.2d 740 [2014] ; Matter of Turner v. Fischer, 95 A.D.3d 1026, 1026, 943 N.Y.S.2d 755 [2012] ; Matter of Jimenez v. Fischer, 87 A.D.3d 771, 771, 927 N.Y.S.2d 804 [2011] ).That being said, the occupant of......