Lopez v. Selsky , 750 N.Y.S.2d 906 ( 2002 )

—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 a prison disciplinary rule.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule that prohibits possession of a weapon after a seven-inch shank was found hidden in petitioner’s mattress. The detailed misbehavior report relating that the weapon was found in petitioner’s mattress during a scheduled cell search provides substantial evidence to support the determination of guilt (see Matter of Rocha v Goord, 284 AD2d 759). Petitioner’s assertion that the weapon was planted in his cell in retaliation for a previous disciplinary incident and his subsequent complaints to facility officials regarding harassment by correction officers presented a credibility issue for the Hearing Officer to resolve (see Matter of Nijman v Goord, 294 AD2d 737). Finally, we reject petitioner’s contention that he was improperly excluded from viewing the search of his cell. Petitioner was at recreation when the search was conducted and, because he was not removed from his cell, it was not required that he be present during the search (see Matter of Perkins v Goord, 290 AD2d 700).

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