IN RE: Anthony VILLAFANE (2023)

MEMORANDUM AND JUDGMENT

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 finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with possessing a weapon after an exacto-type knife blade with a handle and sheath was found hidden inside a combination light switch and electrical outlet box that was mounted on the rear wall of petitioner's cell.  Following a tier III disciplinary hearing, petitioner was found guilty of the charge, and the determination was affirmed upon administrative appeal with a modified penalty.  Petitioner then commenced this CPLR article 78 proceeding.

We confirm.  The misbehavior report, standing alone, provides substantial evidence to support the determination finding petitioner guilty of possessing a weapon (see Matter of Ramos v. Annucci, 208 A.D.3d 1531, 1531–1532, 175 N.Y.S.3d 140 [3d Dept. 2022], lv denied 39 N.Y.3d 909, 2023 WL 2530998 [2023];  Matter of Wimberly v. Annucci, 185 A.D.3d 1364, 1365, 126 N.Y.S.3d 432 [3d Dept. 2020], lv denied 36 N.Y.3d 903, 2020 WL 7393392 [2020]).  Any lack of evidence that petitioner's cell was searched before he was housed in that cell does not negate the inference that he possessed the weapon, and “it was his own responsibility to make sure that no unauthorized items were present in his cell” (Matter of Ballard v. Annucci, 170 A.D.3d 1298, 1300, 95 N.Y.S.3d 611 [3d Dept. 2019] [internal quotation marks and citation omitted];  accord Matter of Spencer v. Annucci, 190 A.D.3d 1247, 1248, 136 N.Y.S.3d 921 [3d Dept. 2021];  Matter of Matthews v. Annucci, 175 A.D.3d 1713, 1713, 108 N.Y.S.3d 217 [3d Dept. 2019]).  To the extent that there was a failure to record the search of petitioner's cell in the gallery log book, such a technical defect does not require that the determination be annulled where, as here, the record reflects that the results of the search were noted elsewhere, including in the misbehavior report (see Matter of Gonzalez v. Venettozzi, 155 A.D.3d 1149, 1150, 62 N.Y.S.3d 834 [3d Dept. 2017], lv denied 30 N.Y.3d 913, 2018 WL 943515 [2018]).  Moreover, the record reflects that petitioner was present when the correction officer conducted the search and discovered the weapon in his cell (see Matter of DeJesus v. Mayes, 196 A.D.3d 992, 992–993, 148 N.Y.S.3d 406 [3d Dept. 2021];  Matter of Spencer v. Annucci, 190 A.D.3d at 1248, 136 N.Y.S.3d 921).  To the extent petitioner's remaining contentions are properly before us, they have been considered and found to be without merit.

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

Aarons, J.P., Reynolds Fitzgerald, Ceresia, Fisher and McShan, JJ., concur.