Israel v. Leonardo

206 A.D.2d 581, 615 N.Y.S.2d 1020, 1994 N.Y. App. Div. LEXIS 7204

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington 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 a State-wide rule prohibiting the possession of weapons. The misbehavior report stated that a metal fork was found in petitioner’s cell. This report, authored by the correction officer who conducted the search, as well as that correction officer’s confirmatory testimony, provide substantial evidence to support the finding of guilt. We find no merit to petitioner’s contention that he was denied a witness. Further, we reject as unsubstantiated petitioner’s argument that prison authorities tampered with the fork (by cleaning it so that it appeared to have been recently placed in his cell) to counter his theory that the fork had been hidden by a prior occupant. Also unsubstantiated is petitioner’s allegation that he was prevented from observing the search of his cell in contravention of a prison directive. Finally, petitioner failed to raise any issue as to the adequacy of his employee assistance at his hearing and, in any event, the record does not support this claim.

Mikoll, J. P., Crew III, White, Weiss and Yesawich Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.