Charles v. Selsky , 785 N.Y.S.2d 798 ( 2004 )

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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rules that prohibit altering an authorized item and possession of a weapon. According to the misbehavior report, a metal nail file imbedded in a pen and sticking out about three quarters of an inch was found in petitioner’s locker. The fact that the contraband was found in an area within petitioner’s control gives rise to an inference that the weapon belonged to him (see Matter of Johnson v Goord, 7 AD3d 901 [2004]; Matter of Alston v Goord, 4 AD3d 708, 709 [2004]). This inference, together with the misbehavior report, picture of the altered pen and testimony at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Cummings v Goord, 10 AD3d 748 [2004]; Matter of Davis v Senkowski, 306 AD2d 778 [2003]). Petitioner’s contention that the pen did not belong to him presented a credibility issue for the Hearing Officer to resolve (see Matter of Cummings v Goord, supra).

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