Diaz v. Goord

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.

Petitioner was charged with possession of contraband and possession of a weapon after a search of his cell uncovered an altered toothbrush with a small piece of metal melted onto the end along with a two-inch nail bent at the end. Petitioner pleaded guilty to the charge of possession of contraband and, after the disciplinary hearing, was also found guilty of possession of a weapon. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination.

We confirm. The misbehavior report, together with the nature *979of the altered toothbrush and admission by petitioner that he made and possessed the item, provides substantial evidence to support the determination finding him guilty of possession of a weapon (see Matter of Zhang v Murphy, 1 AD3d 784, 784-785 [2003]; Matter of Matthews v Goord, 275 AD2d 841 [2000]). Although petitioner maintained that the item was only meant to be used as a screwdriver, it was within the discretion of the Hearing Officer to assess petitioner’s credibility (see Matter of Hernandez v Goord, 295 AD2d 737, 738 [2002], lv dismissed 100 NY2d 529 [2003]). Moreover, petitioner’s exculpatory explanation for possessing the item does not preclude a finding that the altered item could be classified as a weapon in a prison setting (see id. at 738).

We are also unpersuaded by petitioner’s contention that he was improperly denied the right to call character witnesses without a written explanation inasmuch as the record establishes that the requested witnesses had no personal knowledge of the incident (see Matter of Krivoi v Selsky, 284 AD2d 677, 678 [2001]; Matter of Bonez v Senkowski, 265 AD2d 713 [1999]). Petitioner’s remaining contentions are unpreserved for our review (see Matter of Cameron v Goord, 10 AD3d 795, 796

[2004] ).

Mercure, J.P., Peters, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.