Tominaro v. Goord

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 respondent which found petitioner guilty of violating a prison disciplinary rule.

Two searches were conducted on petitioner’s cell. The first search revealed no weapon. The subsequent search, conducted several hours later, revealed two 10-inch pieces of sharpened plexiglass located in one of petitioner’s bedposts. Following a tier III hearing, petitioner was found guilty of violating the prison disciplinary rule prohibiting inmates from possessing weapons. While petitioner asserts that other inmates had access to the area where the weapon was found, this is insufficient to negate the inference of petitioner’s possession given the testimony and evidence presented at the hearing (see, Matter of Morris v Selsky, 264 AD2d 925; Matter of Vasquez v Goord, 263 AD2d 819). We find that the testimony of the correction officer who conducted the first search earlier in the day, the contraband sheet which identified the two pieces found and petitioner’s own testimony provide substantial evidence to support the determination of petitioner’s guilt (see, Matter of Valdes v Selsky, 269 AD2d 710).

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