Brown v. Senkowski

290 A.D.2d 906, 736 N.Y.S.2d 638, 2002 N.Y. App. Div. LEXIS 866

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 2002
• Status: Published

Opinion

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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule prohibiting the unauthorized possession of controlled substances. The misbehavior report stated that, during a search of petitioner’s cell, approximately 70 grams of a leafy substance, later identified as marihuana, were found in a coat pocket. Substantial evidence of petitioner’s guilt was presented at the ensuing disciplinary hearing in the form of the laboratory test results that were positive for the presence of marihuana, the misbehavior report and the testimony of the correction officer who authored the report and whose search of petitioner’s cell led to the discovery of the marihuana (see, Matter of Rosario v Selsky, 266 AD2d 656; Matter of Jandura v Selsky, 251 AD2d 721). Petitioner’s unsupported assertion that the marihuana found in his cell had been “planted” there by correction officers presented an issue of credibility for resolution by the Hearing Officer (see, Matter of Roman v Selsky, 270 AD2d 519; Matter of Rodriguez v Coughlin, 216 AD2d 617). The remaining contentions raised herein, including petitioner’s assertion of Hearing Officer bias, have been examined and found to be without merit.

Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.