Opinion
July 13, 2000.
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.
William Colon, Marcy, petitioner in person.
Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondent.
Before: Crew III, J.P., Carpinello, Graffeo, Rose and Lahtinen, JJ.
MEMORANDUM AND JUDGMENT
Following a tier III hearing, petitioner, a prison inmate, was found guilty of possession of a weapon. The misbehavior report alleged that a six-inch metal rod, sharpened to a point, was discovered in petitioner's cell. While petitioner asserts that the cell was not searched before he moved into it and that he had only been in the cell for a week, this is insufficient to negate the inference of petitioner's possession given the misbehavior report and the lack of any testimony contradicting the correction officer's findings. Under these circumstances, substantial evidence supports the determination of guilt (see,Matter of Linyear v. Goord, 270 A.D.2d 563, 704 N.Y.S.2d 674). Petitioner's contention that the weapon did not belong to him presented a credibility issue for the Hearing Officer to resolve (see, id.; Matter of Morris v. Selsky, 264 A.D.2d 925).
Furthermore, petitioner's contention that the correction officers violated respondent's own rules and regulations, namely Department of Correctional Services Directive 4910 IV (C) (1), which allows for inmates to observe frisks of their cells under certain circumstances, is not preserved for our review due to petitioner's failure to raise this objection at the hearing (see,Matter of Di Rose v. New York State Dept. of Corrections, 228 A.D.2d 868). In any event, were we to consider this issue, we would find it to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.