IN RE: Gilbert AMADEO (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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

In response to confidential information received from two separate sources, petitioner's cube was packed up and frisked, during the course of which a correction officer found two sharpened pieces of metal secreted in the leg of a chair determined to belong to petitioner.   As a result, petitioner was charged with, insofar as is relevant to this proceeding, possession of a weapon.   Following a tier III disciplinary hearing, petitioner was found guilty of the weapon charge and a penalty was imposed.   Although the penalty was modified upon administrative appeal, the underlying determination was otherwise affirmed.   This CPLR article 78 proceeding ensued.

We confirm.   Contrary to petitioner's assertion, the misbehavior report, together with the testimony of the correction officer who packed up and frisked petitioner's cube and the correction sergeant who received the detailed and credible confidential information, as well as the confidential information itself, provide substantial evidence of petitioner's guilt (see Matter of Cummings v. Goord, 10 A.D.3d 748, 749, 781 N.Y.S.2d 708 [2004] ).   Although petitioner's access to the chair may not have been exclusive, a reasonable inference of possession arises from the fact that the weapon was discovered in petitioner's cube and, hence, in an area within petitioner's control (see Matter of Parrilla v. Selsky, 32 A.D.3d 1086, 1087, 820 N.Y.S.2d 863 [2006], lv. denied 8 N.Y.3d 803, 830 N.Y.S.2d 700, 862 N.E.2d 792 [2007];  Matter of Cummings v. Goord, 10 A.D.3d at 749, 781 N.Y.S.2d 708).   Petitioner's remaining contentions, including his assertions that his prehearing confinement deprived him of due process and that the penalty imposed was unduly harsh, have been examined and found to be lacking in merit.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

CARDONA, P.J., CARPINELLO, LAHTINEN, KANE and KAVANAGH, JJ., concur.