White v. Fischer

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. A correction officer smelled the odor of marihuana coming from a cell shared by petitioner and his cellmate. As he approached the cell, he observed that petitioner appeared to be smoking. A cell search was authorized and, while searching the top bunk occupied by petitioner, the officer recovered a state sweater belonging to petitioner with a slit in the waistband and 1188 removed a rolled cigarette that had been secreted inside. The cigarette smelled like marihuana and a test of the substance confirmed that it was. As a result, petitioner was charged in a misbehavior report with possessing drugs, damaging state property and smuggling. Following a tier III disciplinary hearing, he was found guilty of the former two charges but not the latter. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued. We confirm. The misbehavior report and related documentation, together with the testimony of the correction officers familiar with the incident, provide substantial evidence supporting the determination of guilt (see Matter of Dozier v Selsky, 54 AD3d 1074, 1075 [2008]; Matter of Dexter v Goord, 43 AD3d 516, 517 [2007]). Although petitioner denied that the marihuana was his and his cellmate indicated that it belonged to him, this testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Alicea v Fischer, 89 AD3d 1245, 1246 [2011], lv denied 18 NY3d 807 [2012]; Matter of Truman v Fischer, 75 AD3d 1019, 1020 [2010]). Petitioner’s remaining contentions have either not been preserved for our review or are lacking in merit. Rose, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.