Ebanks v. Goord

263 A.D.2d 588, 693 N.Y.S.2d 675, 1999 N.Y. App. Div. LEXIS 7693

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, which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule that prohibits inmates from possessing weapons after a search of his cell uncovered a razor-type weapon with a taped handle in petitioner’s bed post. Although petitioner denied that the weapon was his, an inference of possession arises that the weapon was his inasmuch as it was found within a cell that petitioner had occupied for five weeks (see, Matter of Caraway v Walker, 247 AD2d 675; Matter of Mitchell v Coombe, 238 AD2d 648). This inference, together with the misbehavior report, provides substantial evidence to support the determination of guilt (see, Matter of Caraway v Walker, supra). Petitioner’s remaining contention, that there was no log to indicate that his cell was searched prior to him moving in, has not been preserved for our review as petitioner failed to request a copy of the search log during the hearing (see, Matter of Marino v Coombe, 231 AD2d 788, lv denied 89 NY2d 804).

Mikoll, J. P., Mercure, Crew III, Peters and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.