Fernandez v. Stinson

251 A.D.2d 887, 675 N.Y.S.2d 911, 1998 N.Y. App. Div. LEXIS 7432

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 18, 1998
• 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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rules which prohibit inmates from possessing unauthorized organizational materials and weapons. Introduced into evidence at petitioner’s disciplinary hearing was a detailed misbehavior report and the testimony of the correction officer who discovered 21 pages of gang-related material and a utility blade in the common area of petitioner’s cell. We conclude that this proof constituted substantial evidence to support the determination of guilt (see, Matter of Kennedy v Coombe, 236 AD2d 726; Matter of Rosario v Coughlin, 216 AD2d 610). The fact that petitioner’s cellmate also had access to the area in which the contraband was found is insufficient to defeat the inference of possession by petitioner (see, Matter of Jay v Coombe, 233 AD2d 661, 662). We have reviewed petitioner’s remaining contentions and find them to be either unpreserved for our review or lacking in merit.

Mercure, J. P., Yesawich Jr., Spain, Carpinello and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.