In the Matter of Jose C. Valdes, Petitioner, v. Donald Selsky, as Director of Special Housing Unit, Department of Correctional Services, Respondent

In the Matter of Jose C. Valdes, Petitioner, v Donald Selsky, as Director of Special Housing Unit, Department of Correctional Services, Respondent. [704 NYS2d 673] [MAJORITY] —Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule. After conducting a search of petitioner’s cell, correction officers found a shank in a hollowed-out piece of wood attached to the wall. Following a tier III hearing, petitioner was found guilty of violating the prison disciplinary rule prohibiting inmates from possessing weapons. In our view, the detailed misbehavior report and the testimony of the two correction officers stating that no one occupied petitioner’s cell in his absence provide substantial evidence supporting the determination of petitioner’s guilt (see, Matter of Vasquez v Goord, 263 AD2d 819; Matter of Caraway v Walker, 247 AD2d 675). Although petitioner denies that the weapon was his, an inference of possession arises inasmuch as it was found within a cell that petitioner had occupied for at least three consecutive weeks (see, Matter of Ebanks v Goord, 263 AD2d 588; Matter of Tarbell v Goord, 263 AD2d 563). Petitioner’s remaining contentions have been reviewed and found to be without merit. Cardona, P. J., Crew III, Peters, Carpinello and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.