                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 2, 2017                   523052
________________________________

In the Matter of JASPER
   MITCHELL,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

DEPARTMENT OF CORRECTIONS AND
   COMMUNITY SUPERVISION,
                    Respondent.
________________________________


Calendar Date:   November 29, 2016

Before:   Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.

                             __________


     Jasper Mitchell, Coxsackie, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.

                             __________


      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 a
prison disciplinary rule.

      A search of petitioner's cell disclosed, on top of his cell
locker, a partially smoked, rolled cigarette containing a green
leafy substance that smelled like and tested positive for
marihuana. Petitioner was charged in a misbehavior report with
drug possession. Following a tier III disciplinary hearing, he
was found guilty of the charge and the determination was upheld
on administrative appeal with a reduced penalty. This CPLR
article 78 proceeding ensued.
                              -2-                  523052

      We confirm. The misbehavior report, positive tests result
and related documentation provide substantial evidence to support
the determination of guilt (see Matter of McMaster v Annucci, 138
AD3d 1289, 1289 [2016], lv denied 28 NY3d 902 [2016]; Matter of
Starling v New York State Dept. of Corr. & Community Supervision,
123 AD3d 1195, 1196 [2014]). Contrary to his claim, a reasonable
inference of possession arose by virtue of petitioner's control
over the locker area of his cell (see Matter of Hill v
Venettozzi, 144 AD3d 1295, 1296 [2016]; Matter of Perkins v
Annucci, 129 AD3d 1421, 1421-1422 [2015]). Petitioner's denial
that marihuana was found in his cell or that he possessed it
created a credibility issue for the Hearing Officer to resolve
(see Matter of Bartello v Annucci, 142 AD3d 1194, 1194 [2016]).
To the extent that petitioner argues that he was denied the right
to view or inspect the substance in question, the Hearing Officer
explained that the small quantity of marihuana found was used up
in the testing process and, thus, he was not improperly denied
access to it (see Matter of Morgan v Goord, 10 AD3d 792, 793
[2004]). Petitioner's remaining challenges, including those
regarding the search of his cell and the testing procedures, were
not raised at the hearing and, accordingly, they are unpreserved
for our review and may not be considered (see Matter of Khan v
New York State Dept. of Health, 96 NY2d 879, 880 [2001]; Matter
of Redmon v Smith, 141 AD3d 1071, 1071 [2016]).

      Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.,
concur.


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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
