IN RE: Ra'Shaun MULLER

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

IN RE: Ra'Shaun MULLER, Petitioner, v. Brian FISCHER, as Commissioner of Correctional Services, Respondent.

Decided: May 21, 2009

Before:  CARDONA, P.J., SPAIN, ROSE, KANE and STEIN, JJ. Ra'Shaun Muller, Auburn, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

After a search of his cube disclosed a bent can lid underneath his locker, petitioner was charged in a misbehavior report with violating the prison disciplinary rules that prohibit possessing a weapon and possessing an altered item.   Following a tier III disciplinary hearing, petitioner was found guilty of both charges and a penalty was imposed.   Petitioner's administrative appeal proved unsuccessful, prompting him to commence this CPLR article 78 proceeding to challenge the determination of guilt.

 We confirm.   The misbehavior report, together with the testimony of the authoring correction officer who conducted the search of petitioner's cube, and the physical evidence, constitute substantial evidence of petitioner's guilt (see Matter of Kearney v. Fischer, 51 A.D.3d 1185, 856 N.Y.S.2d 740 [2008];  Matter of Abdullah v. Selsky, 45 A.D.3d 1072, 1073, 846 N.Y.S.2d 421 [2007] ).   Although petitioner's access to his cube may not have been exclusive, “a reasonable inference of possession arises from the fact that the weapon was discovered ․ in an area within petitioner's control” (Matter of Amadeo v. Goord, 49 A.D.3d 1121, 1122, 853 N.Y.S.2d 754 [2008];  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] ).   Petitioner's assertion that the item had been planted in his cube, as well as his claim that the misbehavior report was written in retaliation for a grievance he had filed, presented credibility issues for the Hearing Officer to resolve (see Matter of Belot v. Selsky, 56 A.D.3d 911, 912, 868 N.Y.S.2d 324 [2008];  Matter of Wilson v. Goord, 47 A.D.3d 1102, 1103, 850 N.Y.S.2d 272 [2008] ).   Finally, even assuming that confidential information did prompt the underlying search, the Hearing Officer was not required to assess the credibility of such information because “the misbehavior report and determination of guilt resulted from the discovery of the weapon and not from the confidential information” itself and the confidential informant was not relied upon in considering petitioner's guilt (Matter of Parrilla, 32 AD3d at 1087, 820 N.Y.S.2d 863;  see Matter of Kearney v. Fischer, 51 A.D.3d at 1186, 856 N.Y.S.2d 740).

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

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