Reset A A Font size: Print

Supreme Court, Appellate Division, Third Department, New York.

IN RE: Scott PARRILLA, Petitioner, v. Donald SELSKY, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Decided: September 21, 2006

Before:  CARDONA, P.J., CREW III, CARPINELLO, MUGGLIN and ROSE, JJ. Scott Parrilla, Dannemora, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Wayne L. Benjamin of counsel), for respondent.

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 a prison disciplinary rule.

Based upon confidential information that petitioner was carrying or storing a weapon, petitioner's cube was searched and a metal rod with a taped handle and string attached was found under the wall radiator.   Petitioner was charged in a misbehavior report with, among other things, violating the prison disciplinary rule that prohibits possession of a weapon.   Following a tier III disciplinary hearing, petitioner was found guilty of the weapon charge and the determination was affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

 Although petitioner contends that he did not have exclusive access to the area where the weapon was found, a reasonable inference of possession arises from the fact that it was discovered within petitioner's cube (see Matter of Alston v. Goord, 4 A.D.3d 708, 771 N.Y.S.2d 919 [2004];  Matter of Shackleford v. Goord, 3 A.D.3d 622, 769 N.Y.S.2d 910 [2004] ).   This inference, together with the misbehavior report and testimony at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Bunting v. Goord, 25 A.D.3d 845, 809 N.Y.S.2d 588 [2006];  Matter of Davis v. Senkowski, 306 A.D.2d 778, 761 N.Y.S.2d 538 [2003] ).   Petitioner's contention that the weapon did not belong to him presented a credibility issue for the Hearing Officer to resolve (see Matter of Alston v. Goord, supra ).   We also reject petitioner's contention that the Hearing Officer was required to assess the credibility of the confidential information that prompted the search inasmuch as the misbehavior report and determination of guilt resulted from the discovery of the weapon and not from the confidential information (see Matter of Hemphill v. Selsky, 26 A.D.3d 548, 808 N.Y.S.2d 503 [2006];  Matter of Folk v. Goord, 307 A.D.2d 500, 501, 761 N.Y.S.2d 885 [2003] ).

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

Copied to clipboard