                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 10, 2016                   522506
________________________________

In the Matter of DAVID MORRIS
   HILL,
                    Petitioner,
      v

DONALD VENETTOZZI, as Acting                MEMORANDUM AND JUDGMENT
   Director of Special Housing
   and Inmate Disciplinary
   Programs, et al.,

                    Respondents.
________________________________


Calendar Date:   September 20, 2016

Before:   McCarthy, J.P., Lynch, Rose, Devine and Aarons, JJ.

                             __________


     David Morris Hill, Cape Vincent, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Treasure of counsel), for respondents.

                             __________


      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 finding petitioner guilty of violating
certain prison disciplinary rules.

      After correction officials received an anonymous note
disclosing that petitioner had a weapon in his cell, they
conducted a search and recovered a sharpened piece of metal that
had been fashioned into a cutting instrument inside a glove from
under petitioner's large locker. As a result, petitioner was
charged in a misbehavior report with possessing a weapon and
possessing an altered item. He was found guilty of the charges
                              -2-                522506

following a tier III disciplinary hearing and the determination
was affirmed on administrative appeal. This CPLR article 78
proceeding ensued.

      We confirm. The misbehavior report, related documentation
and testimony of the correction sergeant who ordered the cell
search provide substantial evidence supporting the determination
of guilt (see Matter of Sawyer v Annucci, 140 AD3d 1499, 1500
[2016]; Matter of Burgos v Prack, 129 AD3d 1434, 1434 [2015]).
Although petitioner challenges the reliability of the
confidential information contained in the anonymous note that
prompted the cell search, the note was not necessary to support
the determination of guilt, which was based upon the actual
discovery of the weapon (see Matter of Shufelt v Annucci, 138
AD3d 1336, 1337-1338 [2016]; Matter of Horne v Fischer, 98 AD3d
788, 789 [2012]). Moreover, notwithstanding petitioner's lack of
exclusive access to the area where the weapon was found, the
reasonable inference of possession arises by virtue of
petitioner's control over this area of his cell (see Matter of
Morales v Fischer, 119 AD3d 1298, 1299 [2014]; Matter of Cox v
Fischer, 114 AD3d 973, 974 [2014], lv dismissed 24 NY3d 941
[2014]). His testimony that the weapon did not belong to him
presented a credibility issue for the Hearing Officer to resolve
(see Matter of Cox v Fischer, 114 AD3d at 974; Matter of Aguirre
v Fischer, 111 AD3d 1219, 1220 [2013]). Furthermore, upon
reviewing both the misbehavior report and the unusual incident
report, we find no merit to petitioner's claim that these reports
are conflicting. We have considered petitioner's remaining
contentions, to the extent that they are properly before us, and
find them to be unavailing.

      McCarthy, J.P., Lynch, Rose, Devine and Aarons, JJ.,
concur.
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      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
