                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 23, 2016                     521780
________________________________

In the Matter of TRAZZ SAWYER,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   May 3, 2016

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Mulvey, JJ.

                               __________


     Trazz Sawyer, Albion, 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 respondent finding petitioner guilty of
violating certain prison disciplinary rules.

      During a search of petitioner's cell, a correction officer
found two metal rods less than four inches in length, one that
was bent and the other that was melted into a plastic pen tube,
concealed behind a piece of baseboard. As a result, petitioner
was charged in a misbehavior report with possessing a weapon,
possessing an altered item and possessing contraband. He was
found guilty of the charges following a tier III disciplinary
hearing and the determination was affirmed on administrative
appeal. This CPLR article 78 proceeding followed.
                              -2-                521780

      Initially, contrary to petitioner's claim, the hearing
transcript does not reveal the presence of inaudible gaps that
are so significant as to preclude meaningful review (see Matter
of Coons v Fischer, 106 AD3d 1302, 1303 [2013]; Matter of
Argentina v Fischer, 98 AD3d 768, 769 [2012]). In addition, the
misbehavior report was sufficiently detailed to provide
petitioner with notice of the charges to enable him to prepare a
defense (see Matter of Hyatt v Annucci, 125 AD3d 1025, 1026
[2015]; Matter of Maletta v Amoia, 122 AD3d 962, 963 [2014]).
Turning to the merits, the misbehavior report, related
documentation and hearing testimony provide substantial evidence
supporting the determination of guilt (see Matter of Tavarez v
Annucci, 134 AD3d 1374, 1375 [2015]; Matter of Douglas v Fischer,
126 AD3d 1244, 1245 [2015], lv denied 26 NY3d 904 [2015]). The
fact that the metal objects were found in an area within
petitioner's control, even if not exclusive, supports the
inference of possession (see Matter of Nieves v Annucci, 123 AD3d
1368, 1369 [2014]; Matter of Velez v Prack, 122 AD3d 1041, 1041
[2014]). Petitioner's claims that the objects could have been
planted there by an aggrieved correction officer or another
inmate or may have been left behind by the prior occupant of the
cell presented credibility issues for the Hearing Officer to
resolve (see Matter of Tavarez v Annucci, 134 AD3d at 1375;
Matter of Nieves v Annucci, 123 AD3d at 1369). Furthermore,
there is no indication that the Hearing Officer was biased or
that the determination flowed from any alleged bias (see Matter
of Garcia v Garner, 122 AD3d 988, 989 [2014]; Matter of McFadden
v Prack, 120 AD3d 853, 855 [2014], lv dismissed 24 NY3d 930
[2014], lv denied 24 NY3d 908 [2014]). We have considered
petitioner's remaining contentions and find them to be
unavailing.

      Lahtinen, J.P., McCarthy, Rose, Lynch and Mulvey, 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
