                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 31, 2014                     517280
________________________________

In the Matter of JUAN MORALES,
                    Petitioner,
      v

BRIAN FISCHER, as Commissioner              MEMORANDUM AND JUDGMENT
   of Corrections and Community
   Supervision,
                    Respondent.
________________________________


Calendar Date:   June 9, 2014

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

                             __________


     Juan Morales, Moravia, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondent.

                             __________


      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Franklin County)
to review a determination of respondent which found petitioner
guilty of violating certain prison disciplinary rules.

      A correction officer witnessed petitioner fighting with
another inmate in his cell. Petitioner ignored the officer's
initial order to stop, but complied with a second order, at which
point he and the other inmate were separated. As a result of
this incident, petitioner was charged in a misbehavior report
with fighting, engaging in violent conduct, creating a
disturbance and refusing a direct order. Shortly after this
incident, petitioner's cell was searched and an ice pick type
weapon was found on the top shelf of a small locker between the
pages of a book. Petitioner was charged in a second misbehavior
                              -2-                517280

report with possessing a weapon. A tier III disciplinary hearing
was conducted covering the charges contained in both misbehavior
reports. Petitioner pleaded guilty to the charges contained in
the first report and not guilty to the charge contained in the
second report. He was found guilty of all of the charges and the
determination was affirmed on administrative appeal. This CPLR
article 78 proceeding ensued.

      Petitioner challenges only that part of the determination
finding him guilty of possessing a weapon as charged in the
second misbehavior report. Upon reviewing the record, we find
that the misbehavior report, related documentation and testimony
of the correction officer who prepared the report provide
substantial evidence supporting the determination of guilt with
respect to this charge (see Matter of Alache v Fischer, 91 AD3d
1240, 1241 [2012]; Matter of Muller v Fischer, 62 AD3d 1191, 1191
[2009]). Although petitioner contends that the weapon belonged
to another inmate, no evidence was presented at the hearing to
substantiate this claim. We note that a reasonable inference of
possession arises by virtue of petitioner's control over the area
where the weapon was found notwithstanding the fact that it may
not have been exclusive (see Matter of Cox v Fischer, 114 AD3d
973, 974 [2014]; Matter of Cummings v Goord, 10 AD3d 748, 749
[2004]). Under the circumstances presented here, that inference
was not refuted (compare Matter of Dushock v Prack, 98 AD3d 777,
778 [2012]). In view of the foregoing, the determination must be
confirmed.

      Peters, P.J., McCarthy, Garry, Egan Jr. and Devine, JJ.,
concur.
                              -3-                  517280

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
