Matter of Carelock v. Annucci

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 commenced this CPLR article 78 proceeding challenging a determination finding him guilty of possessing a weapon after a search of his cell revealed a flat steel-like weapon secreted under a small locker in his cell. Contrary to petitioner’s contention, the misbehavior report, weapon, unusual incident report, related confidential documentation, testimony at the hearing and the inferences to be drawn therefrom provide substantial evidence to support the determination of guilt (see Matter of Johnson v Fischer, 109 AD3d 1070, 1071 [2013]; Matter of Alston v Goord, 4 AD3d 708, 709 [2004]). We are unpersuaded by petitioner’s assertion that he was denied due process by being removed from the area during the search of his cell, inasmuch as the sergeant who authorized the cell search testified that he made the determination that, based upon the information received regarding the presence of a weapon in petitioner’s cell, petitioner was removed for safety reasons (see Matter of Gomez v Fischer, 101 AD3d 1195, 1196 [2012]; Matter of Cody v Fischer, 84 AD3d 1651, 1651 [2011]; Matter of Lara v Dubray, 52 AD3d 1143, 1144 [2008]). Petitioner’s remaining contentions are unpreserved for our review. Peters, P.J., McCarthy, Lynch and Devine, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.