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

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

Decided: March 26, 2009

Before:  MERCURE, J.P., LAHTINEN, KANE, MALONE JR. and McCARTHY, JJ. Gerald Griffin, Malone, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff 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.

Following a search of his cell, petitioner was charged in a misbehavior report with violating the prison disciplinary rules that prohibit smuggling and possessing a weapon.   At the conclusion of the ensuing tier III disciplinary hearing, petitioner was found not guilty of smuggling and guilty of possessing a weapon and a penalty was imposed.   Although the penalty was modified upon administrative appeal, the finding of guilt was affirmed, prompting petitioner to commence this proceeding pursuant to CPLR article 78 to challenge that determination.

 We confirm.   Contrary to petitioner's assertion, the misbehavior report and the testimony of the authoring correction officer provide substantial evidence of petitioner's guilt (see Matter of Lopez v. Selsky, 28 A.D.3d 968, 813 N.Y.S.2d 814 [2006] ).   Although petitioner may not have had exclusive access to the area where the secreted utility blade was found, a reasonable inference of possession arises from the fact that the weapon, which was discovered inside the fold of a hat underneath petitioner's mattress, was located in an area within his control (see Matter of Amadeo v. Goord, 49 A.D.3d 1121, 1122, 853 N.Y.S.2d 754 [2008];  Matter of Lopez v. Selsky, 28 A.D.3d at 968, 813 N.Y.S.2d 814).   To the extent that petitioner denied that the weapon was his and/or claimed that it had been planted underneath his mattress by his cellmate, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Fews v. Goord, 54 A.D.3d 1073, 1074, 863 N.Y.S.2d 836 [2008];  Matter of Wilson v. Goord, 47 A.D.3d 1102, 1103, 850 N.Y.S.2d 272 [2008] ).   Further, “[b]ecause petitioner was not removed from his cell for the purpose of conducting the search, the applicable directive did not require his presence” (Matter of Williams v. Goord, 270 A.D.2d 744, 745, 705 N.Y.S.2d 129 [2000];  see Department of Correctional Services Directive No. 4910[V][C][1];  Matter of Stolpinski v. New York State Dept. of Correctional Servs., 32 A.D.3d 1091, 1092, 820 N.Y.S.2d 861 [2006];  Matter of Thomas v. Selsky, 23 A.D.3d 868, 869, 804 N.Y.S.2d 148 [2005];  Matter of Freeman v. Selsky, 270 A.D.2d 547, 705 N.Y.S.2d 87 [2000] ).   Finally, petitioner's objections to the sufficiency of the misbehavior report are unpreserved for our review given his failure to raise these issues at the disciplinary hearing (see Matter of Tafari v. Selsky, 41 A.D.3d 1117, 840 N.Y.S.2d 168 [2007], lv. denied 9 N.Y.3d 809, 844 N.Y.S.2d 785, 876 N.E.2d 514 [2007];  Matter of Cameron v. Goord, 10 A.D.3d 795, 796, 782 N.Y.S.2d 467 [2004] ).

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

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