                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 2, 2017                   523229
________________________________

In the Matter of LOUIS GOMEZ,
                     Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

NEW YORK STATE DEPARTMENT OF
   CORRECTIONS AND COMMUNITY
   SUPERVISION et al.,
                     Respondents.
________________________________


Calendar Date:   November 29, 2016

Before:   McCarthy, J.P., Garry, Egan Jr., Rose and Devine, JJ.

                             __________


     Louis Gomez, Cape Vincent, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Jeffrey W.
Lang 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 a
prison disciplinary rule.

      Following a search of petitioner's cube, a correction
officer found a weapon on the inside of the door to petitioner's
locker that was secured to the metal ledge with a magnet. The
weapon consisted of eight sharpened metal wires taped to the
barrel of a pen. Following a tier III disciplinary hearing,
petitioner was found guilty of possessing a weapon, and that
determination was affirmed upon administrative appeal with a
modified penalty. This CPLR article 78 proceeding ensued.
                              -2-                523229

      We confirm. The misbehavior report, photograph of the
weapon and memoranda from two correction officers provide
substantial evidence of petitioner's guilt (see Matter of Gano v
Venettozzi, 142 AD3d 1240, 1240 [2016]). Petitioner's denial of
any knowledge about the weapon presented a credibility issue for
the Hearing Officer to resolve (see Matter of Bartello v Annucci,
142 AD3d 1194, 1194 [2016]). Petitioner admitted that his locker
was locked most of the time, except when he was nearby in the
dorm, and, contrary to his claim, "a reasonable inference of
possession arises by virtue of [his] control over the area where
the weapon was found notwithstanding the fact that it may not
have been exclusive" (Matter of Morales v Fischer, 119 AD3d 1298,
1299 [2014]; compare Matter of Ganz v Selsky, 34 AD3d 879, 880
[2006]). The Hearing Officer's determination of guilt was not
based upon any confidential information and, thus, did not
require an assessment of the credibility of the information that
prompted the search (see Matter of Shufelt v Annucci, 138 AD3d
1336, 1337 [2016]; Matter of Muller v Fischer, 62 AD3d 1191,
1191-1192 [2009]).

      Petitioner's claim that he was denied the right to call a
certain correction officer as a witness is not properly before
us. Upon appeal, petitioner has offered an entirely separate and
novel basis for calling this witness and abandoned the basis that
he articulated at the time of the hearing. Although inmates are
not required to specifically object at the hearing in order to
preserve issues relative to the denial of requested witness
testimony (see Matter of Henry v Fischer, ___ NY3d ___, 2016 NY
Slip Op 08395 [2016]), we cannot now address an entirely novel
theory that was in no manner raised or presented at the hearing.
Petitioner's remaining claims are either unpreserved or lack
merit, and petition dismissed.

      McCarthy, J.P., Garry, Egan Jr., Rose and Devine, 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
