Mabery v. Coughlin

168 A.D.2d 879, 564 N.Y.S.2d 553, 1990 N.Y. App. Div. LEXIS 15774

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

The misbehavior report was written by the correction officer who conducted the search of petitioner’s coat which revealed the weapon at issue. Furthermore, the report was corroborated by a photograph of the weapon and the testimony of two additional eyewitnesses to the incident (see, Matter of Hernandez v LeFevre, 150 AD2d 954, lv denied 74 NY2d 615). Petitioner’s claim that the weapon was not his and was placed in his coat by someone else merely presented a question of credibility for the Hearing Officer to resolve (see, supra). The weapon was also found in an area within petitioner’s control even though his access may not have been exclusive; accordingly, the determination of guilt on the weapons charge was supported by substantial evidence (see, Matter of Caldwell v Coughlin, 148 AD2d 905). Petitioner’s remaining claims have been considered and found to be without merit.

Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Casey, Levine, Mercure and Harvey, JJ., concur.