Starling v. New York State Department of Corrections & Community Supervision

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 Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with possessing a weapon, possessing contraband and possessing an article in a prohibited area after a search of his room uncovered a bent can top fashioned with a handle under petitioner’s mattress. Petitioner was found guilty as charged and, after exhausting his administrative remedies, commenced this CPLR article 78 proceeding seeking to annul the determination.

*1196We confirm. The misbehavior report and supporting documentation provide substantial evidence to support the determination of guilt (see Matter of Fragosa v Miller, 95 AD3d 1524, 1525 [2012]; Matter of Chiarappa v Fischer, 84 AD3d 1628, 1629 [2011]). Although petitioner shared his room with other inmates, a reasonable inference of possession arises by virtue of his control over the area where the weapon was found (see Matter of Cox v Fischer, 114 AD3d 973, 974 [2014], lv dismissed 24 NY3d 941 [2014]; Matter of Aguirre v Fischer, 111 AD3d 1219, 1220 [2013]). Petitioner’s denial that the weapon was his presented a credibility issue for the Hearing Officer to resolve (see Matter of Fisher v Fischer, 105 AD3d 1286, 1286 [2013]). Petitioner’s remaining contentions are raised for the first time on appeal and, therefore, are unpreserved for our review (see Matter of Merritt v Fischer, 108 AD3d 993, 994 [2013]; Matter of Hynes v Fischer, 104 AD3d 1015, 1016 [2013]; Matter of Wigfall v Department of Corr. Servs., 100 AD3d 1211, 1213 [2012]).

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